West v. F. W. Woolworth Co.

• Decision Date: 08 March 1939
• Docket Number: 98.
• Citation: 1 S.E.2d 546,215 N.C. 211
• Parties: WEST v. F. W. WOOLWORTH CO. et al.
• Court: North Carolina Supreme Court

1 S.E.2d 546

215 N.C. 211

WEST v. F. W. WOOLWORTH CO. et al.

No. 98.

Supreme Court of North Carolina

March 8, 1939

Civil action to recover damages, both compensatory and punitive alleged to have been sustained by plaintiff as a result of slanderous accusations made by the individual defendant as the agent and employee of the corporate defendant.

The defendant Anthony was assistant manager of the corporate defendant. The infant plaintiff was a customer or prospective customer in defendant's store in Asheville. The assistant manager approached him and used language which the jury found, in view of the attendant circumstances, amounted to a charge of larceny. The individual defendant denied that he used the language alleged, or any other language which could reasonably be interpreted as a charge of larceny. The corporate defendant denied that the agent used any language in speaking to the plaintiff which amounted to a charge of larceny, and that if he did use such language he did not do so as its agent, for that he had been expressly instructed to never, under any circumstances, charge any person with theft.

In the trial in the General County Court of Buncombe County appropriate issues were submitted to the jury as to the individual defendant and as to him the jury answered the issues in favor of the plaintiff. The third issue, and the answer thereto, was as follows: "3. If defendant, Robert E. Anthony, used said language as alleged in the complaint was he at the time acting within the course and scope of his authority? Answer: 'No."' Judgment was entered against the individual defendant, from which there was no appeal. It was further adjudged that the plaintiff recover nothing of the corporate defendant and that it go hence without day. From said judgment the plaintiff appealed to the Superior Court.

When the appeal came on for hearing in the Superior Court the Judge below overruled each and every of plaintiff's assignments of error and signed judgment affirming the judgment of the General County Court. The plaintiff excepted and appealed.

George M. Pritchard and M. A. James, both of Asheville, for appellant.

Parker Bernard & Parker, of Asheville, for appellee.

BARNHILL Justice.

A number of the plaintiff's exceptive assignments of error are directed to the failure of the trial court to properly explain the law in respect to the liability of an employer for the torts of an employee committed while about the master's business in the scope of his employment, and to apply the same to the evidence in the cause. The plaintiff complains that the court below failed to adequately differentiate between actual and implied authority and to explain to the jury that under the law an employer is liable for the tort of his employee committed while acting in the scope of his authority while about his master's business although the particular act is in violation of positive instructions not to perform his duties in the manner complained of.

The statements of law contained in the court's charge appear to be in accord with the decisions of this court. To determine whether a charge as given, or a failure to charge upon some particular phase of the case, constitutes harmful error, it is frequently necessary for us to examine the charge as a whole. Here, it appears that the defendant set up in its answer that if the individual defendant used language which amounted to a charge of larceny he violated the express instructions from said company that he should never under any circumstances charge any person with theft. It further appears that in the statement of the contentions of the corporate defendant the court charged the jury:

"Defendant on the other hand contends you ought not to so find. Defendant contends even if you find Anthony at the time was acting as manager of the store, was assistant manager in the employ of Woolworth & Co., as a matter of fact he had no authority to accuse anybody of stealing a knife, or any other property, from the store.

"Defendant contends that the manager and assistant manager and all other employees in the store were especially instructed in writing never under any circumstances to accuse anybody of stealing anything; that whenever they had any reason to believe some person in the store was, or had picked up some article of merchandise, they were to send some floor walker, or some person employed by the store, to stay around close to that person, and offer to sell the things the person would be looking at until he had left the store; that the value of any small article picked up in the store was too slight for the defendant to risk a wrong accusation being made, and all the employees understood that, and the defendant, Anthony, had no authority, because he had been instructed otherwise, and he would not have done so even if he had seen the boy take the knife, so defendant contends you ought not to find he was acting within the scope of his employment or course of his authority, even if you should find he was guilty of accusing the boy of taking the knife."

In connection with this defense set up by the corporate defendant and under this charge as to the contentions of the defendant it was the duty of the jury to answer an issue which required it to determine whether Anthony at the time he used the alleged language was "acting within the course and scope of his authority." In view of these circumstances it became important to the plaintiff's cause that the court correctly define the term "authority" and to explain that it embraced not only actual, but implied authority; and that when the agent or employee is about his master's business, acting within the...