Colonial Stores Inc. v. Sasser , 79 Ga. App. 604 ( 1949 )

1. Where it is alleged that as plaintiff was leaving the defendant's store and was on a public street, in the presence and hearing of numerous persons, and employee of the store asked what she had put in her pocket in the store and then searched her pockets with his hands, and where it is further alleged that, the facts being made known to the manager, the latter stated that the employee had been trained to do just that and he was doing the right thing, the petition set forth a cause of action and it was not error for the trial judge to overrule a general demurrer thereto.

2. There was no error in overruling the renewed special demurrers to the petition as amended.

DECIDED JULY 11, 1949. The defendant in error, Mrs. Annie Laura Sasser, filed a suit in the City Court of Richmond County against Colonial Stores Inc. The petition as amended alleges: that the defendant owns and operates a general retail, self-help food store in Augusta, Georgia; that the plaintiff entered the store as a customer to make purchases; that she picked up a box of onion salt and took it to the cashier's register to pay for it, but, finding a long line of customers there, returned the box to the spice counter and left the store without making a purchase; that, as she was leaving the store and was on the street, an employee of the defendant company ran over to her, asked what she had put in her pocket, and patted both her pockets with his hands to make a search thereof; that this was in the presence and hearing of a number of persons on the street; that she returned to the store and demanded a public apology for this conduct from the manager; that the manager refused to apologize and further stated, as to the employee, "that he had been trained to do just that and that he was supposed to watch the customers and he was doing the right thing, however, apparently he had made a mistake," and that all this conduct on the part of the agent of the defendant was intended to imply that she was a thief.

The defendant demurred generally and specially to the petition. All grounds of demurrer were overruled, and to this decision of the trial judge the defendant excepts. The petition in the instant case does not seek, as contended by counsel for the defendant, to set forth a cause of action based upon the utterance of false and defamatory words by the agent of a corporation. The only words alleged to have been spoken by the employee of the defendant after he had followed the plaintiff to the street in front of the store were in the form of a question as to what it was she put in her pocket in the store. We doubt that this question, by itself, would have been a sufficient allegation of tortious misconduct to sustain the action, and the plaintiff's further allegation that the defendant intended to convey and did convey the meaning that the plaintiff was a thief would, without more, have been in the nature of a conclusion.

However, it is further alleged that the defendant's employee laid hands on the plaintiff and felt her pockets, in the course of making a search. In this particular the case differs fromWoolf v. Colonial Stores, 76 Ga. App. 565 (46 S.E.2d 620), wherein the incident not only occurred at some distance from the premises, but there was no allegation of any assault or battery, and the action was based entirely on the spoken words of the defendant's servant. The court there held that the petition showed on its face that it was an action for damages for slander, and cited various paragraphs of the petition to show that it was an action based entirely upon injury to the reputation.

Code § 105-108 provides as follows: "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."

In McGhee v. Kingman Everett Inc., 49 Ga. App. 767 (2) (176 S.E. 55), it was held as follows: "In determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master's business for accomplishing the ends of his employment." See alsoFrazier v. Southern Ry. Co., 200 Ga. 590 (37 S.E.2d 774).

In the instant case, the defendant's employee accosted the plaintiff on Greene Street, immediately outside the defendant's store. The plaintiff, immediately after the incident, re-entered the store and informed the defendant's manager of the facts. She returned a second time that day with her daughter and again sought out the manager, who had undoubtedly, in the meantime, had opportunity to give the matter consideration and to obtain any further information he might have wanted from his employee. On this second occasion the manager stated that the employee "had been trained to do just that and that he was supposed to watch the customers and he was doing the right thing, however, apparently he had made a mistake." This statement, taken with the other allegations of the petition, is sufficient to establish as against a general demurrer that the servant was in fact acting within the scope of the transaction of his master's business and accomplishing the ends of his employment.

The mere fact that the assault occurred on the outside of the defendant's store rather than on the inside is immaterial, it appearing that the defendant's employee was at the time acting within the scope of his employment. We are aware that frequent attempts are made to draw such a distinction, on the theory that the duty which one who occupies property may owe to an inviteeon the premises ceases immediately the premises have been left, and this has resulted on occasion in efforts to keep a case in court by alleging that a plaintiff had a hand on the door, or a foot inside the threshold, at the time the assault occurred. We do not believe that the mere physical presence of a part of the plaintiff's person within the building should decide the merits of a case of this nature. Rather, the true test is whether the assault is so related to, and so integrally a part of the transaction of the company's business as to grow logically and inescapably out of it. On the premises or off, a business establishment which invites customers to come in and trade owes to them the duty of not sending its employees out after them to commit unlawful assaults upon them while acting within the scope of employment.

In Schwartz v. Nunnally, 60 Ga. App. 858 (5 S.E.2d 91), where an employee became aggrieved at a remark of the plaintiff customer and followed him out to the sidewalk where the assault was committed, the court held: "The evidence with reference to the assault outside of the store made a question for the jury as to whether the assault was so closely connected with the authorized transaction of the company's business as to render the company liable for the wilful acts of its servants. . . It was a question for the jury as to whether the company owed the plaintiff the duty to exercise ordinary care in seeing that he left the premises in safety insofar as any transaction was concerned for which he was invited into the store or which arose out of a transaction for which he was invited. If the assault arose out of the business which the employee was authorized to transact and was so closely connected thereto as to form a part thereof, the company would be liable. If the assault did not so arise and was so remote as to be an act of the employee alone, the master would not be liable." This decision was followed and cited with favor in Clark v. Americus Hardware, 77 Ga. App. 282 (47 S.E.2d, 909). In Taff v. Life Insurance Co. of Georgia, 77 Ga. App. 839 (50 S.E.2d 154), it was expressly pointed out that the facts differed from the Schwartz case in that it was not alleged that the agent was engaged in his master's business.

While it is held by our Supreme Court in Southern Ry. Co. v.Chambers, 126 Ga. 404 (55 S.E. 37, 7 L.R.A. (N.S.) 926), that, "None of the cases, so far as our attention has been called to them, has gone to the extent of holding that the company would be liable for the tort of the agent at other places than where the agent was placed by the company for the discharge of the duties of his agency," here it appears that the agent was following the instructions of his superior officer, the manager of the store, who later informed the plaintiff that the employee "had been trained to do just that and he was doing the right thing." Also, in the Chambers case, supra, it is held as follows:

"But when one who is an agent of the corporation commits a tort at places other than the place of agency, the company is not liable for the tort, unless it appears that it authorized the act or ratified it after its commission." Here the allegations of the petition are sufficient to show both that the act was authorized and that it was ratified.

It is further well established that the fact that the misconduct of the defendant's employees contains elements of slander does not relieve the corporation of its duty to protect invitees, although no recovery can prevail for the slander, which may be simultaneously involved. See Southern Grocery StoresInc. v. Keys, 70 Ga. App. 473 (28 S.E.2d 581), and citations; Colonial Stores Inc. v. Coker, 74 Ga. App. 264 (39 S.E.2d 429).

2. The petition as amended is not subject to the criticism of the special demurrers, and the action of the trial court in overruling the general and special demurrers is without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.