BROWN v. COLONIAL STORES, INC

Mrs. Mamie Brown sued Colonial Stores Inc., to recover damages for an alleged tort. Her petition alleged as follows: "Said defendant is engaged in the business of merchandising and selling food as a retailer of groceries and other merchandise to the general public and has many branch stores and super markets in said State and county and elsewhere. 2. Said defendant has hurt, injured, and damaged your petitioner in the sum of twenty thousand dollars (20,000) as the proximately result of its acts and the acts of its agents, employee's, officers, and servants hereinafter related. That on October 13, 1962, petitioner was in the supermarket of defendant, located at 1660 Jonesboro Road, S.E., City of Atlanta, Ga. (A) October 13, 1962 at said time and place, she went to and was there as a customer and invitee, to purchase and did purchase groceries as she had previously done at said time and place. (B) After purchasing her groceries and other articles then, and there, she went to the cashier's stand to have her grocery's check and to pay for them at the place and in the manner provided for such purposes at the checkers stand in said place of business. 3. While the petitioner was in the act, then and there, of having her purchaser's checked, and agent, employee, and manager, officer, servant of defendant, a Mr. Barnes, manager and in charge of said store approach stopped and spoke to petitioner as hereinafter related. (A) At all said times, then and there, said agent, employee, manager, officer, and servant of defendant spoke to and conversed with petitioner in the presence's where he could be and was heard and understood by other person's who were there and nearby, at the cashier stand and in said place of defendant's business. (B) At all times hereinafter related, said Mr. Barnes was an agent, employee, officer, and servant in charge of defendant's said store and was acting in his capacity, authority, employment of defendant's in and about the conduct of its said place of business. (C) At said time and place said agent, employee, manager, officer, servant of defendant made himself known to petitioner and said to her. 4. `Are you Mrs. Mamie Brown', She replied; 'yes', Then he said: `I have a check here on the Southside Bank for forty dollars ($40.00)'. `Did you write this check?', and then handed her the check. She looked at the check and said; `I did not cashed that check.' He then asked; `Do you have any money in the bank.' She said; `No, I only write personal checks.' He then said; `You were in the store when I cashed that check.' Then she said; `I told him that I was in the store October 5, 1962 and I was not in the store with my son October 6, 1962.' Then Mr. Barnes said; `I am going to take this check to the bank and have the signature on this check compared, with your signature at the bank.' 5. The petitioner did not write the check for $40.00 above referred to and had no prior knowledge thereof. (A) She was not in defendant's store with her son or anyone when said check was presented and cashed October 6, 1962. She did not aid or have any part therein, received no benefit therefrom and the same was not her act or deed. (B) She does not have and cannot plead a copy of said check. 6. The act of said Mr. Barnes, his conversation and his statement did then and there embarrassed, humiliated, ridiculed and held petitioner up to public scorn, odium, and implied that she had uttered, passed and cashed the check referred to and shown to her, that it was worthless and that she had committed a crime by aiding, abetting and knowing that said check had been presented uttered and cash as worthless. 7. Said act of said Mr. Barnes was the act of defendant in the usual course of his employment by defendant. 8. Said act and conversation of defendant's Mr. Barnes, agent manager, officer, and servant, proximately cause said hurt, injury and damage to petitioner. 9. Said act, at said time and place was a breach of her freedom, liberty, movement, privacy and was an unlawful arrest. 10. Said act and conversation at said time and place cause petitioner great embarrassment, made her sick and sore and thereby she suffered mental pain and agony therefrom." The court sustained the general demurrer to the petition and the plaintiff excepted.

RUSSELL, Judge.

With some difficulty the allegations of the pleadings may be construed to infer that the plaintiff was a customer in the defendant's store; that on October 6 a check with the plaintiff's name signed to it which according to the contention of the manager of the store was presented and cashed by plaintiff's son at a time when plaintiff was present in the store was returned for insufficient funds, and that the next time the plaintiff came into the store the manager asked her whether she wrote the check. She did not at first deny writing the check, but only said she did not cash it. He then asked her whether she had money in the bank and she agreed that she did not have money in the bank, or at least not in an account which would have covered the check in question: "No, I only write personal checks." The manager then said plaintiff was in the store when he cashed the check, and the plaintiff again evaded a direct denial, according to her quoted words, and said merely that she was not "in the store with my son October 6," the date of the check. Thus, the plaintiff's own account of the conversation puts her in an ambiguous position of appearing to evade forthright answers to questions naturally raised by the fact that the check had not been honored in the ordinary course of business by the drawee. It is hard to determine whether the plaintiff intended for the manager to understand that the check was a forgery, or that she had written the check but had not cashed it. She had not made her position clear. The manager then told her he intended to have the signature on the check compared with the signature of the maker on file at the bank. Only this last sentence can be made the subject of inquiry, because the plaintiff freely admitted she had no funds in the bank out of which the check could be paid. Since she had refused to state whether she did in fact write the check in answer to his question, the store manager's statement that he would find out by having a comparison of signatures made seems a natural reaction under the circumstances.

This conversation is alleged to give rise to a right of action because it was a "breach of [plaintiff's] freedom, liberty, movement, privacy, and was an unlawful arrest." The petition does not allege a cause of action for unlawful arrest because no unlawful detention is alleged. Westberry v. Clanton, 136 Ga. 795 ( 72 S.E. 238).

It does not allege either that the words spoken were per se defamatory, or that they were subject to two meanings, one of which was intended by way of innuendo to be defamatory, nor does it allege that the defendant corporation directed or authorized its agent to speak the words in question. The petition hence does not set forth a cause of action for a breach of duty to refrain from slandering the plaintiff or for slandering her.

Neither is an actionable violation of the right of privacy alleged. "Personal liberty includes not only freedom from physical restraint, but also the right `to be let alone', to determine one's mode of life, whether it shall be a life of publicity or of privacy, and to order one's life and manage one's affairs in a manner that may be most agreeable to him so long as he does not violate the rights of others or of the public." Pavesich v. New England Life Ins. Co., 122 Ga. 190 (5) ( 50 S.E. 68, 69 LRA 101, 106 ASR 104, 2 AC 561); Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682 (2) ( 100 S.E.2d 881). It was said in Zerbst that one who seeks employment, and who obtains credit, and who trades with the proprietor of an automobile repair shop, naturally exposes herself to the ordinary hazards of life, including the fact that even though she rightfully refuses to pay a bill the creditor may complain to her employer, and that this is no invasion of privacy. Likewise, one who trades in a retail store, and whose name is signed to a check returned for insufficient funds, is exposed to questioning about the check as one of the normal hazards of modern mercantile trading, whether or not she wrote the check in the first instance, and particularly if the check was cashed by a member of her family. No "right of privacy" has been invaded.

The duty of a proprietor to exercise ordinary care to prevent injury to an invitee on his premises arises when "there is any reasonable apprehension of danger to such a customer." Moone v. Smith, 6 Ga. App. 649 (1) ( 65 S.E. 712), a case cited by the plaintiff in error but involving a physical injury to a customer in the midst of a general fight in the establishment, and not otherwise applicable. The duty of the proprietor may rest on either of two principles. It may itself be negligent by ordering its employee to do something which injures the plaintiff or by negligently hiring an employee after such characteristics become known to it. No such facts are alleged here; the defendant is liable, if at all, under the doctrine of respondeat superior. "Every person shall be liable for torts committed by his wife, his child, or his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary." Code § 105-108; Southern R. Co. v. Morrison, 105 Ga. 543, 547 ( 31 S.E. 564). So considering the case we must ignore the fact that the defendant is a proprietor and consider the allegations as though suit had been filed against the employee in his individual capacity, or against any private person where the same confusion obtained concerning the authorship of the check. A, who has cashed a check with B's name on it and had it returned for lack of funds, informs B in effect that he understands B to maintain the check is a forgery; that he, A, does not believe it is a forgery, and that he is going to take it down to the bank and have the signatures compared. He does this in the vicinity of other people who may have overheard the conversation, and who may form the conclusion therefrom that in B's opinion A is the maker of the check, or at least that B is not convinced that A is not the maker of the check. A considers this insulting. It is not, however, as insulting as to say to a woman: "I am talking to old lady Atkinson, God damn you," Atkinson v. Bibb Mfg. Co., 50 Ga. App. 434 ( 178 S.E. 537), or stating to another in the presence of the plaintiffs that "he was going to kill the God damn sons of bitches," Buice v. Citizens c. Nat. Bank, 71 Ga. App. 563 ( 31 S.E.2d 414). "No Georgia cases are cited and we have been able to find none which go so far as to hold that abusing, insulting, harrowing and cursing an individual constitutes a wrong cognizable under the law of torts in the State of Georgia." Johnson v. General Motors Acceptance Corp., 228 F.2d 104. Since no actionable tort was committed such that the plaintiff might recover from the speaker, he cannot recover against the employer. Miller v. Friedman's Jewelers, 107 Ga. App. 841 ( 131 S.E.2d 663). Every cited case the court has examined in which recovery has been allowed rests on the theory that the proprietor is liable for the tortious misconduct of the employee, not on conduct falling short of a tort. In Colonial Stores, Inc. v. Coker, 74 Ga. App. 264 ( 39 S.E.2d 429) and similar cases the tort might be one for which the employer was not itself liable as a corporation, but it was a tort for which the employee could have been sued directly regardless of the duty of the proprietor. No case has gone so far as to hold that the employer may be liable for conduct of the employee which is not, as to the latter, cognizable as a breach of a private duty owing the plaintiff by the actor, no negligence being shown as against the employer itself.

Cases cited to our attention on the question of the duty of a proprietor to protect others against insults from company employees include Southern R. Co. v. Chambers, 126 Ga. 404 (4) ( 55 S.E. 37, 7 LRA (NS) 926); Hillman v. Georgia R. Bkg. Co., 126 Ga. 814 ( 56 S.E. 68, 8 AC 222); Cole v. Atlanta West Point R. Co., 102 Ga. 474 ( 31 S.E. 107) and others involving railroad or telegraph companies. We do not of course make a broad decision that insults by employees are not actionable; but, in consideration of the problem, both the public interest with which the defendant is invested and the wilful character of the act committed against the plaintiff must be considered. As to the former, the distinction was made the basis of the holding in Dunn v. Western Union Tel. Co., 2 Ga. App. 845, 849 ( 59 S.E. 189): "A telegraph company is a private corporation performing a public duty; and whether it is a common carrier, a bailee, or a person engaged in business sui generis, is immaterial. It is a public-service company, one engaged in a business of such nature as to clearly distinguish it from those purely private persons and corporations who may conduct their own business in their own way. All such corporations, on account of the interest which the public has in the manner in which their business is conducted as well as on account of the special franchises enjoyed by them, must observe certain rules of dealing with the public." After pointing out that government imposes on institutions impressed with a public interest the duty of acting impartially to all, Judge Powell adds (p. 851), "The fact that the right of respectful treatment, while attempting to do business with a public-service company, follows as the natural sequence from the right to be served impartially and at all reasonable times, seems to render the citation of authority as to the existence of this right of respectful treatment unnecessary." It follows that cases involving this class of corporations stand within different parameters from those which involve an ordinary proprietorship.

The petition also differs from Southern Grocery Stores, Inc. v. Keys, 70 Ga. App. 473 ( 28 S.E.2d 581) and like cases which allege the commission of a tort (slander) by the use of words with an obvious defamatory meaning, and from cases like Hazelrigs v. High Co., 49 Ga. App. 866 (1) ( 176 S.E. 814), where the act is alleged to be wilful and wanton rather than merely negligent.

"In the absence of allegations of physical injury or of malicious, wanton, voluntary and intentional wrong, the plaintiff is not entitled to recover for mental pain and suffering, nervousness, upset, anxiety, embarassment and humiliation." Shook v. Southern R. Co., 101 Ga. App. 128 ( 113 S.E.2d 155). See also Stephens v. Waits, 53 Ga. App. 44 ( 184 S.E. 781) and citations.

The petition alleges neither misconduct amounting to a tort nor a wilful and intentional attempt to humiliate and embarrass the plaintiff, and damages are sought for mental suffering only. It follows that no cause of action is set out.

Judgment affirmed. Nichols, P. J., Frankum, Jordan and Pannell, JJ., concur. Eberhardt, J., concurs specially. Bell, P. J., and Hall, J., concur with this special concurrence. Felton, C. J., dissents.