Great Atlantic & Pacific Tea Co. v. Paul

DIGGES, J., delivered the opinion of the Court. This case comes before us on appeal from an action for assault and battery, slander and false imprisonment. It involves as appellant The Great Atlantic and Pacific Tea Co., Inc., the owner of the nationally known chain of A & P food stores, and as appellee John Joseph Paul, a retired police officer suffering from a recent heart condition. On the charge that one of A & P’s employees, John Parker, falsely accused the appellee of shoplifting, frisked him, and unlawfully detained him, Paul recovered $10,-000 compensatory and $30,000 punitive damages.

Still in a convalescent stage Mr. Paul, in civilian garb, went shopping at his local A & P store in Hillcrest Heights, Maryland, on December 20, 1967. So recent had been his heart attack that this was one of the first times he had ventured out in his automobile. The Hillcrest Heights store was a typical supermarket with check-out counters in the front, many longitudinal rows of self-service aisles in the rear, and of course the usual fleet of shopping carts for the customers’ convenience. There was no requirement that a customer must use a cart.

On this occasion, due to heavy crowds in the store, Mr. Paul left his cart at the end of one aisle and slowly proceeded to examine carefully the labels of various articles of food to make sure they complied with his strict post-cardiac diet. Having examined and selected a particular item he would ⁶⁴⁶ then return to his cart, deposit the goods and go in search of other merchandise. Mr. Parker, the second assistant manager, testified that he considered this method of shopping somewhat unusual, and his attention having been attracted, he observed Mr. Paul’s shopping techniques for approximately twenty minutes. Although Mr. Paul was a regular shopper at this A & P and known to a number of employees there, Mr. Parker, a relatively new addition to the store, did not know him.

Upon completion of his observation Parker came to the conclusion that Paul had taken a can of flea and tick spray and had placed it in his coat pocket with the apparent intention of shoplifting. The policy of A & P on shoplifting as testified to by the manager of the store in question was to let each employee “use his own judgment” as to what steps should be taken. He further testified that Parker was authorized to do what was done in this case. The testimony conflicts widely at this point.

Parker testified he merely questioned Paul about a can of flea and tick spray that had been in his cart earlier. He did not see Paul secrete this item anywhere, but assumed he had because it was no longer in the cart and in his opinion Paul had not had sufficient time to return the spray to its proper place on the shelf. He said appellee became nervous and defensive, demanding to see the manager. Parker said he never touched Paul, there was no commotion and there were few customers in the store.

Paul testified that Parker accosted him in the middle of an aisle and demanded in a loud voice to know what he had done with the spray. When Paul said he did not have such an item Parker replied, “Don’t tell me, you goddamn thief. You got it in your coat.” Paul further testified that when this occurred some twenty-five to thirty customers in the immediate vicinity of the aisle turned and stared, and continued to watch as Parker roughly frisked him, knocking over a display of cans and loudly repeating his accusation of thievery. His testimony continues that Parker then grabbed him by the arm and forced him to march ⁶⁴⁷ to the manager’s office at the front of the store, attracting the attention of shoppers waiting at the check-out counters.

No flea spray or any other item belonging to A & P was found on Paul’s person. Appellee stated as a result of the experience he was severely upset and reached home in his automobile only with difficulty. There was testimony that word of this incident spread throughout Paul’s neighborhood some two miles from the location of the store, although the specific widespread report was to the effect that Paul had been “picked up for shoplifting.” Paul had lived in the community approximately ten years and was well known in the area. Some of the A & P employees at the Hillcrest store were close-by neighbors.

Paul testified that the incident aggravated his heart condition causing him physical pain and suffering, as well as personal humiliation. The jury by its verdict chose to believe Paul’s version of the occurrence, and appellant realizes this aspect of the case is final. It insists, however, that mistakes of law requiring reversal have been made by the trial judge, one with reference to the slander phase of the action, the other with respect to the false imprisonment phase. The facts of this case as found by the jury dispose of many of the subtle and troublesome issues that inhabit the law of defamation.

Parker’s use of the word “thief” clearly imports commission of a crime (larceny) for which appellee would be liable to indictment and punishment by imprisonment. Fawsett v. Clark, 48 Md. 494 (1878). This circumstance makes Parker’s utterance slanderous per se and obviates the need for proof of special damages. Pollitt v. Brush-Moore, Etc., Inc., 214 Md. 570, 574-76 , 136 A. 2d 573 (1957).

Also there is no need here for construction or use of innuendo to see if the words can bear the defamatory meaning alleged, Shockey v. McCauley, 101 Md. 461 , 61 A. 583 (1905), and there is no claim that use of these words was privileged. Appellant’s sole ground for reversal on the decision of slander is that the element of publication was not satis ⁶⁴⁸ fied. “Publication” in the law of defamation is the communication of defamatory matter to a third person or persons. Gambrill v. Schooley, 93 Md. 48 , 48 A. 730 (1901); 33 Am. Jur., Libel and Slander, Sec. 90 (1959) ; Newell, Slander and Libel (4th ed. 1924) 218.

This means that for alleged defamatory words to be actionable they must be seen or heard by some person other than the plaintiff and defendant. 1 There is the further qualification that this third person must understand the meaning of the words, the familiar example being that no publication occurs when a third person hears slanderous words spoken in a foreign language he does not understand. Gambrill v. Schooley, supra, 93 Md. at 60 . Appellant proposes that publication in the law of slander is a different and stricter requirement than it is in libel. It says that in order for slander to be published the plaintiff must show that the defendant spoke the defamatory words in the hearing of a third person who personally knew or knew of the plaintiff.

It concedes, as it must, that publication to any third party is sufficient in libel. Gambrill v. Schooley, supra; Shutter Bar Co. v. Zimmerman, 110 Md. 313 , 73 A. 19 (1909). It argues that damage to reputation is the gravamen of slander and there can be no actionable tort when defendant does not communicate the defamatory words to someone whose opinion of the plaintiff may reasonably be affected. It further argues the distinction between libel and slander on this point is that written words have a permanent nature and libelous material once distributed may fairly be presumed to reach persons who personally know the plaintiff.

We do not think such a distinction exists in law nor do we think there is any requirement in either libel or slander that the publication be to a third person having personal knowledge of the plaintiff. Appellant supports his argument by reference to two ⁶⁴⁹ cases, Bonkowski v. Arlan’s Department Store, 12 Mich. App. 88 , 162 N.W.2d 347 (1968) and Geraghty v. Suburban Trust, 238 Md. 197 , 208 A. 2d 606 (1965). His reliance is misplaced.

We think both of these cases are consistent with well settled law. In Bonkowski a husband and wife were stopped by a department store security guard as they were about to enter their car on a shopping center parking lot. The guard accused the wife of taking jewelry from the department store without paying and compelled her to empty her pocketbook. She established that there were other persons in the parking lot at that time.

The court found that the forced emptying of her pocketbook in the presence of a uniformed guard could constitute a dramatic pantomime implying that Mrs. Bonkowski was a thief. However, the court found no publication to the husband (for reasons not here pertinent) and no publication of the “slander by act” because Mrs. Bonkowski neither “knew or could identify anyone [else] who had been present.” 162 N.W.2d at 353 . Publication not having been established the judgment was reversed. We do not believe this decision is correctly interpreted by appellant.

A & P seeks nourishment for its argument by reference to these few quoted words when it is apparent in their proper context the court was merely stating that there was no proof that any one present in the parking lot either heard the remarks or observed the incident. Accordingly, the Michigan court said, “Our ruling here does not mean to suggest that requisite publication of slander may never be presumed, as it can be in the case of publication of libel in a newspaper. [Authorities omitted.] But the proofs here do not suffice.” 162 N.W.2d at 353 . In Geraghty v. Suburban Trust, supra, the plaintiff alleged she was attempting to secure a loan at defendant’s bank when defendant’s agent said to her, “I doubt verj?much if this will go through. I think you are just a front for Mr. Prevost.” She alleged these words were slanderous per se as tending to injure her in her business.

A demurrer was interposed to this declaration which was sus ⁶⁵⁰ tained by the trial court and affirmed by this Court. A & P in citing this case relies again on only a selected portion of the Court’s language. A fuller reading of the opinion makes it obvious the Court merely decided that the words alleged to have been spoken were ambiguous and could not support a charge of slander, absent an allegation that they were heard and interpreted by a listener as conveying the alleged defamatory meaning. We quote from that opinion at 202: “Another fundamental principle in the law of slander is that the defamatory words must be ‘published.’ Publication, in the law of slander, means the transmission of ideas and thoughts to the perception of a person, other than the party speaking and the party spoken of.

Gambill v. Schooley, 93 Md. 48, 60 . We have stated above that there was no allegation in appellant’s declaration that anyone (other than she and the bank officer) in whose presence the words were ' spoken knew her, knew what her business was at the bank, knew what the officer was talking about, or gleaned anything of a defamatory nature from the words spoken; and the words spoken, if considered by themselves, could have been interpreted as having a harmless meaning.” The latter portion of the quoted paragraph completely refutes appellant’s contention as to the holding in this case. After a diligent search we have been able to discover no support for appellant’s contention either in cases or texts. In S. Bower, A Code of the Law of Actionable Defamation, Art. 6 a (2d ed. 1923), the author states: “It is immaterial, in order to constitute publication in law, whether the communication be made to one or more named or known or specific persons, or to the public at large or a class or number of unknown or undesignated persons.

The former kind of publication is termed . . . ‘particular publication’ and the latter ‘general publica ⁶⁵¹ tion.’ ” Not only must the words be heard by third persons but they must also be understood to refer to the plaintiff. 33 Am. Jur., Libel and Slander, Sec. 90 (1959) states the following: “It would seem to follow, also, that from the language used, aided, if necessary, by extrinsic circumstances, the hearer should be able to identify the person defamed.” We think that the requirement of publication in slander is met when the person defamed is clearly recognizable as a distinct individual and that this is the sense in which “know” and “identify” are used. As we said in Shutter Bar Co. v. Zimmerman, supra, “The authorities agree that in order to maintain an action for libel or slander it must appear that the defamatory words refer to some ascertained or ascertainable person, and that person must be the plaintiff.” 110 Md. at 318 (emphasis added). In Tocker v. Great Atlantic & Pacific Tea Company, (D.C. Mun.

App.) 190 A. 2d 822 (1963) which case significantly was relied on by the Michigan court in Bonkowski v. Arlan’s Department Store, supra, á store manager stopped a woman as she left the store and accused her of putting back merchandise in the wrong place. She contended that the words and actions of the manager were ambiguous and required submission to a jury to say whether they constituted a slander by implying she was a thief. She also testified there were other people behind her on the sidewalk. The court affirmed a directed verdict for the defendant.

Their reasons for doing so are instructive. “The absence of the essential element of publication is fatal to appellant’s claim for recovery of damages for slander. Because the interest protected by the law of defamation is that of reputation in the opinion of others, to render slander actionable it is necessary that the defaming words be communicated to some person other than the one defamed. Appellant makes no showing that the words spoken to her were ⁶⁵² overheard by any other person. The burden was upon appellant to prove by a fair preponderance of the evidence the actual publication of the slanderous words.

This she failed to do. She was the sole witness to testify on this point. Her only statement on this critical issue was, ‘There were other people behind me.’ No testimony was offered that the words of the manager were spoken in a loud, clear tone susceptible of being overheard or that his action attracted any attention or created any disturbance on the sidewalk. Appellant did not testify how far away the ‘other people’ were, whether they were standing near or walking away, or