Zayre of Atlanta, Inc. v. Sharpton
| Decision Date | 16 October 1964 |
| Docket Number | No. 3,No. 40698,40698,3 |
| Citation | 139 S.E.2d 339,110 Ga.App. 587 |
| Parties | ZAYRE OF ATLANTA, INC. v. Wynell SHARPTON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A cause of action is alleged by a petition which asserts that the plaintiff while an invitee on the premises of another for the purpose of transacting business was subjected to opprobrious, insulting and abusive words by a clerk employed to deal with the business-invitee and which humiliated, mortified, and wounded the feelings of the invitee.
2. The theory upon which this type of action is predicated is that the business-invitor owes a public duty which it has not fulfilled to protect its business-invitees from abusive language which amounts to slander. It is not based on the theory that the invitor is the perpetrator of the wrongful act of commission nor that the affront done is imputable to it under the maxim respondeat superior or otherwise. Liability rests solely on the invitor's breach of its public duty by the act of omission in properly performing its duty.
Wynell Sharpton sued Zayre of Atlanta, Inc., for tortious misconduct allegedly committed against her by the defendant's employee while she was a business invitee on the defendant's premises.
The petition as amended shows the following facts: The plaintiff was in the defendant's department store, shopping for a dress. She selected three dresses from a display rack, took them to a dressing room, tried them on and then returned them to one of defendant's employees. She then proceeded to a display counter about ten feet away, and was accosted by defendant's employee Thelma Gardner, a floorwalker employed for the purpose and duty of detecting and apprehending shoplifters. Thelma Gardner said to plaintiff, 'Don't you know better than to wear the dress out of the fitting room?' and plaintiff asked Thelma Gardner what she meant by this. Thelma Gardner then said to plaintiff, loudly enough for many of defendant's customers and employees to hear, 'You came in here with shorts on,' meaning that plaintiff had committed the crime of larceny of theft. At that time plaintiff was in fact wearing a dress of her own that she had worn into the defendant's store.
The petition alleges further that the plaintiff was an invitee and customer in defendant's store; that defendant owed her the duty to protect her from the tortious misconduct of its employees acting within the scope of their duties and about the business of their employer; that defendant breached this duty and that the false accusations 'caused her severe and excruciating mental pain and anguish, ruined her good reputation, held her to scorn and ridicule and caused the public finger of reproach to be pointed toward her.'
The defendant filed a general demurrer to the amended petition, which was overruled by the trial judge. The defendant excepts to the judgment overruling its general demurrer.
Greene, Neely, Buckley & DeRieux and James H. Moore, Atlanta, for plaintiff in error.
Charlie Franco and James H. Weeks, Atlanta, for defendant in error.
It is recognized as a basis for a cause of action in this State when an invitee on the premises of another for the purpose of transacting business is made the brunt of opprobrious, insulting and abusive words by a clerk employed to deal with the customer-invitee and which tend to humiliate mortify, and wound the feelings of the customer. Lemaster v. Millers, 33 Ga.App. 451, 126 S.E. 875; Hazelrigs v. J. M. High Co., 49 Ga.App. 866, 176 S.E. 814; Sims v. Miller's, Inc., 50 Ga.App. 640, 179 S.E. 423; Southern Grocery Stores Inc. v. Keys, 70 Ga.App. 473, 28 S.E.2d 581; Colonial Stores, Inc. v. Coker, 74 Ga.App. 264, 39 S.E.2d 429; and Mansour v. Mobley, 96 Ga.App. 812, 101 S.E.2d 786
This type of cause of action was first approved clearly and emphatically by the Supreme Court in the case of Cole v. Atlanta & West Point Ry. Co., 102 Ga. 474, 31 S.E. 107. Although the invitor in that case was a railroad company under the duty to exercise extraordinary care toward its invitees, the principle is applicable to invitors of all kinds of business establishments including those where the standard of care required is only ordinary care. It was so expressly held in Moone v. Smith, 6 Ga.App. 649(2), 65 S.E. 712.
One of the early opinions appearing in our appellate court reports permitting the cause of action against a mercantile establishment is Lemaster v. Millers, 33 Ga.App. 451, 126 S.E. 875 which cites as its authority both the Cole and the Moone cases. It is important to note that the Supreme Court has given at least its tacit approval to the interpretation of the Cole case as announced and followed in Moone through its denial of certiorari in the Lemaster case which followed and cited as its only precedents both Cole and Moone. See P. 829, 33 Ga.App. Reports, 126 S.E. 875. 1 It is thus to be seen that the basic authority for the action is founded on the holdings by the Supreme Court in Cole.
Since Cole, Moone and Lemaster there have been a welter of cases many of which in varying degrees have added confusion to the simple cause by jumbling it with other types of actions such as those founded on assault, assault and battery, and slander. Simply based though it is solely on the invitee relationship, there are even those cases which would allow the action, erroneously we think, to extend to those plaintiffs who stand beyond the bounds of that position. Colonial Stores, Inc. v. Sasser, 79 Ga.App. 604, 607, 54 S.E.2d 719. Not only that but the cause has been blithely described in Southern Grocery Stores Inc. v. Keys, supra, as an action for 'tortious misconduct' which term has been perpetuated by cases such as Colonial Stores, Inc. v. Coker, supra, until today there are those of bench and bar who refer to this action by the title of 'tortious misconduct' without regard to the fact that that generous term must apply to every act which constitutes a tort whatever the act, or wherever it occurs, or whoever or whatever is involved.
The theory upon which this type action is predicated as explained in Cole is that the business invitor owes a public duty which it has not fulfilled to protect its business invitees from abusive language which amounts to slander. It is not based on the theory that the invitor is the perpetrator of the wrongful act of commission nor that the affront done is imputable to it under the maxim respondeat superior or otherwise. Liability rests solely on the invitor's breach of its public duty. Thus where an invitor's servant is the actual wrongdoer, the invitor cannot escape liability by having delegated its duty to a servant proving unworthy of the trust, for then the company is liable for the act of omission in properly performing its duty.
It appears that the rule was formulated by the Supreme Court and followed and extended with alacrity by this court in order to except business invitees from the seemingly harsh rule that ...
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