Simpson v. Jacobs Pharmacy Co. Inc.

Sutton, C. J. (After stating the foregoing facts.) Under the allegations of the petition, the plaintiff was an invitee in the defendant’s retail store, where the defendant’s servants and employees, in the course of their employment with the defendant, falsely accused the plaintiff of the criminal offense of attempting to cheat and swindle the defendant of a sum of money and otherwise insulted and humiliated her in the presence of the other customers in said store. It was held in Colonial Stores Incorporated v. Coker, 74 Ga. App. 264 (1, a) (39 S. E. 2d, 429): “When a corporation, engaged in the retail mercantile business, impliedly extends an invitation to the public to trade in its store, it is required to exercise the same degree of diligence to protect its customers from the tortious misconduct of its employees as an individual must exercise to protect an invitee from the misconduct of such individual’s agents and employees acting about their master’s business and within the scope of their employment, though such misconduct of the corporation’s agents and employees may involve elements of slander. Accordingly, in an action against a corporation for damages caused by ■ false accusations of the defendant retail store’s cashier and manager, that the plaintiff, who was a customer in said store, had obtained a box of dried milk for which she refused to pay, thus intimating that the plaintiff was a cheat, swindler, and thief, the allegations of the petition are sufficient, as against the demurrers of the defendant, to set out a cause of action against the defendant corporation.” Also, see Southern Grocery Stores v. Keys, 70 Ga. App. 473 (28 S. E. 2d, 581); Moone v. Smith, 6 Ga. App. 649 (65 S. E. 712); Lemaster v. Millers, 33 Ga. App. 451 (126 S. E. 875); *235 Hazelrigs v. High Company, 49 Ga. App. 866 (176 S. E. 814); Sims v. Millers, 50 Ga. App. 640 (179 S. E. 423). Attempting to cheat and swindle another of money or property of value by false representations is an indictable offense under the laws of this State. In this connection, see Code, Chapter 26-74; Code, § 27-2507; DeKrasner v. State, 54 Ga. App. 41 (187 S. E. 402), and citations. It was further alleged in the petition that the servant and employee of the defendant assaulted the plaintiff by pushing and brushing her aside with her hands and otherwise humiliated and embarrassed her in the presence of the other customers in said store. Under the allegations of the petition, a cause of action was stated, and the trial judge erred in sustaining the general demurrers and dismissing the action. ' While a corporation is not liable for slanderous and defamatory utterances by one of its agents, where not ordered and directed by it, even though spoken by such agent within the scope of his duties and for the benefit of the corporation (Behre v. National Cash Register Co., 100 Ga. 213, 27 S. E. 986, 62 Am. St. 320); Ivins v. L. & N. R. Co., 37 Ga. App. 684, 141 S. E. 423, Russell v. Dailey’s Inc., 58 Ga. App. 641, 199 S. E. 665), the present case is not one against the corporation for slander, but is one against the corporation for the failure to exercise due care to protect its customers from the tortious misconduct of its servants and employees acting within the scope of and about their master’s business. The fact that such misconduct may involve elements of slander does not prevent the plaintiff from having a cause of action against the corporation for breach of its duty towards her as an invitee on its premises. In this connection, see Southern Grocery Stores Inc. v. Keys, supra; Colonial Stores Incorporated v. Coker, supra, and citations. The cases cited and relied on by the defendant in error are distinguishable on their facts from the present case and the rulings therein made do not authorize' or require a different ruling in this case from the one made herein. The plaintiff in error contends in her brief filed in this court that the trial judge passed upon certain grounds of the defendant’s demurrer which attacked the petition upon the grounds that it was multifarious and duplicitous. We do not think the judgment of the trial judge excepted to dealt with these grounds of the demurrer. A general demurrer to a petition does *236 not raise questions as to multifariousness, duplicity, or misjoinder of causes of action, or as to nonjoinder or misjoinder of parties, but such • questions can be raised only by special demurrer. Grant v. Hart, 192 Ga. 153 (14 S. E. 2d, 860). “Multifariousness, duplicity, or misjoinder is ground for special demurrer.” Tingle v. Maddox, 186 Ga. 757 (1) (198 S. E. 722). In his judgment, the trial judge expressly stated that he was sustaining the general grounds of the demurrer and that the special grounds were not passed upon. Accordingly, the contention of counsel for the plaintiff in error, that the trial judge passed on those grounds of the demurrer attacking the petition on the grounds of duplicity and multifariousness, can not be legally sustained. The petition set out a cause of action, and the trial judge erred iii sustaining the general demurrers thereto and dismissing the action. Judgment reversed. Felton and Parker, JJ., concur.