Woolf v. Colonial Stores Inc

• Decision Date: 26 February 1948
• Docket Number: No. 31918.,31918.
• Citation: 46 S.E.2d 620
• Parties: WOOLF . v. COLONIAL STORES, Inc.
• Court: Georgia Court of Appeals

46 S.E.2d 620

WOOLF .

v.COLONIAL STORES, Inc.

No. 31918.

Court of Appeals of Georgia, Division No. 1.

Feb. 26, 1948.

Syllabus by the Court.

1. The motion to dismiss the writ of error is without merit.

2. The petition failed to set out a cause of action against the defendant; and the trial judge did not err in sustaining the defendant's general demurrer and in dismissing the action.

Error from Superior Court, Fulton County; Bond Almand, Judge.

Action by Oliver Woolf, Sr., against Colonial Stores, Inc., to recover damages for false accusation of theft. To review a judgment sustaining defendant's general demurrer and dismissing the action, plaintiff brings error and defendant moves to dismiss the bill of exceptions.

Motion to dismiss denied and judgment affirmed.

Oliver Woolf, Sr., filed an action for damages against Colonial Stores, Incorporated, and alleged substantially as follows: That on the 8th day of August, 1947, he entered defendant's store to purchase a can of tobacco; that "at the time and place petitioner was carrying under his arm a package containing a bundle of coins, and after making the purchase of a can of tobacco, started out of the store and had reached the street when an employee of defendant corporation, one John Coleman, accosted petitioner and demanded that he pay for the meat he took belonging to defendant and which he was carrying under his arm, at the same time accusing petitioner of stealing the meat"; that "petitioner endeavored to reason with defendant's agent but to no avail, after which your petitioner was further humiliated and embarrassed before a police officer at the next block where defendant's agent in front of said officer spoke loud enough so that a number of folks standing by heard defendant's agent accuse petitioner of stealing meat from the said store of defendant corporation"; "that the said officer finding no evidence of any stolen meat or any property belonging to defendant corpora-tion released said petitioner"; "that by reason of the speaking of the false, malicious and defamatory words aforesaid he has been and is greatly injured in his said good name, reputation, fame and credit, and brought into public scandal, infamy and contempt, with and among his neighbors; that "at the time and place that the agent of defendant did accuse petitioner of the crime of theft, he was on and about the business of said defendant corporation"; that the "remarks of defendant's agent were actionable in nature and damaging within themselves"; and "that said action on part of defendant's agent has caused him much suffering and mental pain and worry." The prayers of the petition were for process and judgment against the defendant.

The defendant demurred generally to the plaintiff's petition on the ground that it failed to set out a cause of action, and also filed certain special demurrers. The trial judge sustained the general demurrer and dismissed the plaintiff's declaration. The plaintiff excepted to that judgment.

A. D. G. Cohn, Charles Markeles, and Scott Lay, Jr., all of Atlanta, for plaintiff in error.

Smith, Kilpatrick, Cody, Rogers & Mc-Clatchey and Hoke Smith, all of Atlanta, for defendant in error.

PARKER, Judge.

1. There is a motion to dismiss the bill of exceptions on the grounds: (1) Said bill of exceptions has no entry of service thereon, nor was service waived; (2) the bill of exceptions does not designate who is the plaintiff in error and who is the defendant in error, nor can the same be determined from a reading of the bill of exceptions. The motion to dismiss can not be sustained. There is now an acknowledgment of service on the bill of exceptions by the defendant's attorney. While no plaintiff in error or defendant in error is designated as such in the bill of exceptions, it appears therefrom who was the plaintiff and who was the defendant in the trial court, that the defendant's general demurrer to the plaintiff's petition was sustained and the petition dismissed, and that the plaintiff excepted and brought the case to this Court. Consequently, it can be determined from a reading of the bill of exceptions who is the plaintiff in error and who is the defendant in error. Joiner v. Singletary, 106 Ga. 257 (1), 32 S.E. 90; Rosenheim Shoe Co. v. Home, 10 Ga.App. 582 (1), 73 S.E. 953. The motion to dismiss is without merit.

2. The trial judge did not err in sustaining the defendant's general demurrer to the petition and in dismissing the plaintiff's action, because the petition shows that it was an action for damages for slander. Paragraph 7 of the petition is as follows: "Plaintiff avers that by reason of the speaking of the false, malicious and defamatory words aforesaid he has been and is greatly injured in his said good name, reputation, fame and credit, and brought into public scandal, infamy and contempt with and among his neighbors." And paragraph 12 alleges: "Petitioner shows that said remarks of defendant's agent were actionable in nature and damaging within themselves." Other allegations in the petition tend to indicate that it was based squarely on alleged slanderous words uttered respecting the plaintiff, amounting to a slander, and was not an action "for failure to protect the plaintiff as a customer lawfully upon the defendant's premises from injuries caused by the misconduct of the defendant's employees, " for which an action will lie under the rulings in Hazelrigs v. High Company, 49 Ga.App. 866, 176 S.E. 814, and other cases.

This case is controlled by the ruling in Behre v. National Cash Register Co., 100 Ga. 213, 27 S.E. 986, 62 Am.St.Rep. 320, that: "A corporation is not liable for damages resulting from the speaking of false, malicious, or defamatory words by one of...