Opinion
40698.
DECIDED OCTOBER 16, 1964. REHEARING DENIED NOVEMBER 4, 1964.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Greene, Neely, Buckley DeRieux, James H. Moore, for plaintiff in error.
Charlie Franco, James H. Weeks, contra.
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.
DECIDED OCTOBER 16, 1964 — REHEARING DENIED NOVEMBER 4, 1964.
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 or 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.
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 R. 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, supra, 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. It is thus to be seen that the basic authority for the action is founded on the holdings by the Supreme Court in Cole.
The Supreme Court also denied certiorari in Sims v. Millers, Inc., see 50 Ga. App. 902; Colonial Stores v. Coker, see 74 Ga. App. 893; and Mansour v. Mobley, see 96 Ga. App. 901.
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, 70 Ga. App. 473, supra, as an action for "tortious misconduct" which term has been perpetuated by cases such as Colonial Stores, Inc. v. Coker, 74 Ga. App. 264, 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 "A corporation is not liable for damages resulting from speaking false, malicious, and defamatory words by one of its agents, even where in uttering such words the speaker was acting for the benefit of the corporation and within the scope of his agency, unless it affirmatively appears that the agent was directed or authorized by the corporation to speak the words in question. Behre v. National Cash Register Co., 100 Ga. 213 [27 S.E. 986, 62 ASR 320]." Southern R. Co. v. Chambers, 126 Ga. 404, 408 ( 55 S.E. 37, 7 LRA (NS) 926).
Through this exception business invitees by virtue of their relationship are accorded a remedy against the invitor for the latter's breach of its duty in failing to accord the invitee on its premises immunity from opprobrious, insulting and abusive words from its agents and servants employed to deal with the customer-invitees. The breach of this duty occurs the instant those types of words expressing slanderous statements which tend to humiliate, mortify, and wound the feelings of the customer are uttered by the company's agents or servants and the liability arises by the company's act of omission to fulfill its duty.
The petition in this case asserts charges which under sufficient proof would present jury issues on this type cause of action. Judgment affirmed. Jordan and Eberhardt, JJ., concur specially.
I concur in the judgment but not in all that is said in the opinion, especially that language critical of the reasoning and result reached in Colonial Stores, Inc. v. Sasser, 79 Ga. App. 604 ( 54 S.E.2d 719). See my special concurrence in Greenfield v. Colonial Stores, Inc., 110 Ga. App. 572, 576.
As I see it we have conflicting lines of decisions dealing with the situation presented in this case.
As Judge Bell points out in the opinion, the conduct of the agent of the corporate defendant in speaking the abusive language gives rise to a cause of action against the employer only when the language "amounts to slander."
I cannot reconcile the allowing of this action with the line of cases beginning with Behre v. National Cash Register Co., 100 Ga. 213 ( 27 S.E. 986) in which it was held that "A corporation is not liable for damages resulting from the speaking of false, malicious, or defamatory words by one of its agents, even where in uttering such words the speaker was acting for the benefit of the corporation and within the scope of the duties of his agency, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question." And see Ozborn v. Woolworth, 106 Ga. 459 ( 32 S.E. 581); Southern R. Co. v. Chambers, 126 Ga. 404 ( 55 S.E. 37); Jackson v. Atlantic C. L. R. Co., 8 Ga. App. 495 ( 69 S.E. 919); Headley v. Maxwell Motor Sales Corp., 25 Ga. App. 26 (1) ( 102 S.E. 374); Russell v. Dailey's, Inc., 58 Ga. App. 641 (1) ( 199 S.E. 665); Sinclair Refining Co. v. Meek, 62 Ga. App. 850 ( 10 S.E.2d 76); Southern Grocery Stores, Inc. v. Keys, 70 Ga. App. 473 (1) ( 28 S.E.2d 581); Cochran v. Sears, Roebuck Co., 72 Ga. App. 458 ( 34 S.E.2d 296); Woolf v. Colonial Stores, Inc., 76 Ga. App. 565 ( 46 S.E.2d 620) and McKown v. Great A. P. Tea Co., 99 Ga. App. 120 (1) ( 107 S.E.2d 883).
There is, however, another line of decisions beginning with Cole v. Atlanta West Point R. Co., 102 Ga. 474 ( 31 S.E. 107), reviewed in Judge Bell's opinion, under which the action is allowable.
There is no substantial difference in the factual situations presented in the two lines of cases. I can see no difference in the duty of the corporate employer, and there should be no difference in the result. The second line of cases appears to be a strained device to circumvent the first. There is no logical basis for holding the corporate employer liable in one but not in the other. In doing so we simply engage in "double talk." An honest approach would result in either an overruling of the cases affording corporate immunity in these situations (which is probably preferable) or an overruling of those which by the evasive device impose liability.
But both lines stem from decisions of the Supreme Court. If the overruling is to be done, only that court can do it, and until they do we must continue the march wearing the two faces of Janus.
I am authorized to say that Presiding Judge Bell and Judge Jordan concur in this statement relative to the conflicting positions of the two lines of cases and agree that this is an area in which we need some direction, guidance and help from the Supreme Court.