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BENNETT v. NORBAN. (05/28/59)

May 28, 1959

BENNETT, APPELLANT,
v.
NORBAN.



Appeal, No. 224, March T., 1958, from order of Court of Common Pleas of Erie County, May T., 1958, No. 141, in case of Shirley Bennett v. Joseph Norban, individually and trading as Lynn's, also known as Lynn's Self-Service Store. Order reversed. Trespass. Order entered sustaining defendant's preliminary objections to certain counts in complaint, order by EVANS, J. Plaintiff appealed.

COUNSEL

Gerald A. McNelis, Sr., with him McNelis and McNelis, for appellant.

Richard C. Barron, with him Thomas E. Doyle, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 396 Pa. Page 96]

OPINION BY MR. JUSTICE BOK

Plaintiff complains in four counts: assault and battery, slander, invasion of privacy, and false imprisonment. Preliminary objections were sustained to slander and invasion of privacy, and plaintiff has appealed.

On Saturday afternoon, December 28, 1957, appellant entered defendant's store in Erie. It was a self-service store and at the time was busy. Appellant selected a purse but couldn't find a cashier to wrap it for her. She moved on to look at some skirts an aisle or two away, carrying the purse, but being in a hurry to return to the hospital where her child was recovering from an operation, she soon replaced the purse and left the store without buying anything.

Twenty feet from the entrance she was overtaken by the Assistant Manager of the shop, who was redfaced and angry and in his shirt sleeves. He put his hand on her shoulder, put himself in position to block her path, and ordered her to take off her coat, which, being frightened, she did. He then said: "What about your pockets?" and reached into two pockets on the sides of her dress. Not finding anything, he took her purse from her hand, pulled her things out of it, peered into it, replaced the things, gave it back to her, mumbled something, and ran back into the store. Passersby stopped to watch, to appellant's great distress and humiliation.

Appellee contends that slander must consist of words only, and brings to bear the case of Yundt v. Yundt, 12 S. & R. 427 (1825), in which this Court said:

[ 396 Pa. Page 97]

"But a charge may be made entirely by gestures: and no one will pretend, that such a charge could be made the subject of an action of slander."

This was dictum and by way of illustration, for the point of decision was that plaintiff averred only that defendant charged him with forgery, without ...


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