Present: All the Justices
FOOD LION, INC.
v. Record No. 941224
CHRISTINE F. MELTON
OPINION BY JUSTICE BARBARA MILANO KEENAN
June 9, 1995
CHRISTINE F. MELTON
v. Record No. 941230
FOOD LION, INC.
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
In this appeal from a judgment in a tort action, we consider
whether the trial court erred: 1) in striking the plaintiff's
evidence of defamation; and 2) in barring the plaintiff from
introducing in her case in chief the defendant's original
responses to the plaintiff's request for admissions, which had
been amended prior to trial.
Christine F. Melton filed a motion for judgment against Food
Lion, Inc., alleging intentional infliction of emotional
distress, defamation, insulting words, false imprisonment, and
negligence. Melton alleged that, upon leaving the Food Lion
store located at Route 1 and Parham Road in Henrico County, she
was "accosted by a security guard" employed by Food Lion, who
accused her "repeatedly and in a belligerent accusatory voice" of
leaving the store with meat in her purse. Melton alleged that,
as a result of this encounter, she suffered "great humiliation,
embarrassment, pain, suffering, anxiety, stress, severe distress,
nervousness and damage to her reputation," which caused her to
require medical attention.
In response to Melton's requests for admission, Food Lion
made the following relevant admissions:
3. Admit that during his encounter with the
plaintiff on April 19, 1991, the security guard
referred to in the plaintiff's Motion for Judgment was
employed by the defendant.
Response: Food Lion admits that the loss
prevention agent referred to in the motion for judgment
was employed by Food Lion.
. . .
5. Admit that at the time of the plaintiff's
encounter with the security guard referred to in the
plaintiff's motion for judgment, the security guard was
acting within the scope of his employment with the
defendant.
Response: Food Lion admits that during all times
relevant to this action, the loss prevention agent was
acting within the scope of his employment with Food
Lion.
Shortly before trial, Food Lion moved to amend these
responses to deny that Melton's accuser was a Food Lion employee
acting within the scope of his employment. At a hearing, Food
Lion proffered testimony that its manager and loss prevention
agent had made these admissions based on their belief that
Melton's lawsuit arose out of an incident they recalled, but they
later realized that Melton was not the woman involved in that
other incident.
The trial court permitted Food Lion to file amended
responses. At the trial, the court granted Food Lion's motion in
limine prohibiting Melton from introducing the original
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admissions into evidence as part of her case, but ruled that she
could use them for impeachment purposes.
Melton, who was 68 years old at the time of the incident,
testified that on the day in question, after purchasing meat at
the Food Lion store, she left the store and walked out into the
parking lot. She had almost reached her car, which was parked
"directly in front of the store in the regular parking lot," when
a man approached her and accused her of leaving the store with
meat belonging to Food Lion in her purse.
According to Melton, the man said, "[D]on't you have some
meat that belongs to us?" Melton told the man she had purchased
some meat and had a receipt to prove this fact. The man then
said, "I'm not talking about that, I'm talking about the meat
that you have in your purse." Although Melton denied having any
meat in her purse, the man repeatedly questioned her in an
accusatory manner, using a "very loud tone," and stood close to
her so that she understood she was not free to leave. He then
showed her an object that appeared to be a badge and stated,
"What if I called the police?" After Melton allowed him to
search her purse and no merchandise was found, the man terminated
the encounter and left.
Melton further testified that the incident occurred on a
Friday afternoon, that people were nearby during this
confrontation, and that there were "people going in and out of
the store and there were people stopping to listen and see what
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was going on." Melton did not know the names of any of these
people. She also stated that the entire incident lasted about
ten minutes.
Melton stated that, after arriving home, she telephoned the
store and asked to speak to the manager. Her call was
transferred and was answered by an unidentified man. When Melton
related the details of the incident to him, the man replied:
"[T]his is the second time he has done this. He's not under my
jurisdiction. He works from one store to the other but I will
report him." Melton described her accuser as being a large,
African-American man.
At the conclusion of Melton's evidence, the trial court
granted Food Lion's motion to strike her claims of defamation and
intentional infliction of emotional distress. Food Lion then
presented its case, which included the testimony of Derrick
Slater, a loss prevention agent for Food Lion.
Slater testified that he was one of the two African-American
loss prevention agents employed by Food Lion on the date of the
incident in the region in which the Route 1 store is located.
Slater stated that he had not worked at the Route 1 store on the
date in question, and that the other African-American loss
prevention agent, Duane Knight, had never worked at the Route 1
store.
The evidence further showed that Melton was unable to
identify Slater as the man who accosted her. She testified that
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her accuser was heavier than Slater and had a lighter complexion.
Food Lion also presented evidence concerning its established
procedures for confronting a suspected shoplifter, as well as
evidence indicating that Melton's accuser did not follow these
procedures. Finally, Food Lion called as witnesses the two male
managers working at the store on that day. Both denied having
received a telephone call from a customer relating the details of
this incident.
The jury returned a verdict for Melton on the negligence
count, but found in favor of Food Lion on the counts of false
imprisonment and insulting words. The trial court denied
Melton's motion for a new trial and entered judgment on the
verdict. This appeal followed.
Melton first argues that the trial court erred in striking
her evidence of defamation. Specifically, she asserts that she
presented prima facie evidence of publication of the defamatory
remarks, by her testimony that a number of people stopped to
listen to the security guard's accusations.
In response, Food Lion contends that the trial court
properly struck the defamation count because Melton presented no
evidence that any of the bystanders in the parking lot actually
heard or understood the man's verbal accusations. Food Lion
asserts that Melton was required to identify the persons to whom
the statements were published in order to prove the essential
element of publication. We disagree with Food Lion.
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First, in reviewing a trial court's decision to strike a
plaintiff's evidence, we consider the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the
plaintiff. Any reasonable doubt regarding the sufficiency of the
evidence must be resolved in the plaintiff's favor. Waters v.
Safeway Stores, Inc., 246 Va. 269, 270, 435 S.E.2d 380, 380
(1993).
Second, we set forth the principles of law applicable to our
consideration of this defamation claim. Since the trial court
did not state its basis for striking the evidence of this claim,
we do not limit our consideration to the issue of publication but
examine the evidence as a whole to determine whether it was
sufficient to establish a prima facie case.
As pertinent here, a published statement is defamatory and
is actionable per se when it imputes to a person the commission
of a criminal offense involving moral turpitude, for which the
party, if the charge is true, may be indicted and punished.
Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 146, 334
S.E.2d 846, 849 (1985); Carwile v. Richmond Newspapers, Inc., 196
Va. 1, 7, 82 S.E.2d 588, 591 (1954). A statement imputes the
commission of a crime when it refers to matters that would
naturally and presumably be understood by those hearing them as
charging a crime. Moss v. Harwood, 102 Va. 386, 388, 46 S.E.
385, 386 (1904); see also Schnupp v. Smith, 249 Va. 353, 360-61,
___ S.E.2d ___, ___ (1995).
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In the circumstances presented here, involving a plaintiff
who is not a public official or public figure, and an alleged
defamatory statement that imputes commission of a crime and thus
makes substantial danger to reputation apparent, a negligence
standard applies. See Gazette, Inc. v. Harris, 229 Va. 1, 15,
22-23, 325 S.E.2d 713, 724-25, 729, cert. denied, 472 U.S. 1032
(1985). The plaintiff must prove by a preponderance of the
evidence that the statement was false and that the defendant
either knew the statement was false or, believing it to be true,
lacked reasonable grounds for such belief or acted negligently in
failing to ascertain the truth. Ingles v. Dively, 246 Va. 244,
251, 435 S.E.2d 641, 645 (1993); Gazette, 229 Va. at 15, 325
S.E.2d at 724-25.
The plaintiff further must prove that there was publication
of the defamatory words. Montgomery Ward & Co. v. Nance, 165 Va.
363, 378, 182 S.E. 264, 269 (1935). It is sufficient to show
that, when the defendant addressed the defamatory words to the
plaintiff, another person was present, heard the words spoken,
and understood the statement as referring to the plaintiff. See
Snyder v. Fatherly, 158 Va. 335, 350, 163 S.E. 358, 364 (1932);
Powell v. Young, 151 Va. 985, 997-98, 144 S.E. 624, 627, rev'd on
other grounds, 151 Va. 1002, 145 S.E. 731 (1928); see also
Gazette, 229 Va. at 37, 325 S.E.2d at 738. However, this Court
has not addressed specifically the issue raised by the parties
here, namely, whether proof of publication under facts such as
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these requires direct evidence from a third party who actually
heard and understood the defamatory remarks as referring to the
plaintiff.
In considering this issue, courts of other jurisdictions
have held that circumstantial evidence alone may be sufficient to
prove publication of the defamatory remarks. See, e.g., Wal-Mart
Stores, Inc. v. Dolph, 825 S.W.2d 810, 811-12 (Ark. 1992);
Lombardi v. Flaming Fountain, Inc., 327 So. 2d 39, 40-41 (Fla.
Dist. Ct. App. 1976); Montgomery Ward & Co. v. Cliser, 298 A.2d
16, 22-23 (Md. 1972); Southwest Drug Stores of Mississippi, Inc.
v. Garner, 195 So. 2d 837, 841 (Miss. 1967); Harris v. Temple,
392 S.E.2d 752, 753-54 (N.C. Ct. App.), review denied, 395 S.E.2d
678 (N.C. 1990); Gaudette v. Carter, 214 A.2d 197, 200 (R.I.
1965); Duckworth v. First Nat'l Bank, 176 S.E.2d 297, 301 (S.C.
1970).
We agree with this principle and hold that, in order to
establish prima facie evidence of publication, a plaintiff is not
required to present testimony from a third party regarding what
that person heard and understood, or to identify the person to
whom the defamatory words were published. Instead, a plaintiff
may prove publication of defamatory remarks by either direct or
circumstantial evidence that the remarks were heard by a third
party who understood these remarks as referring to the plaintiff
in a defamatory sense.
In the present case, it is undisputed that Melton's accuser
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made statements imputing to her the commission of the crime of
larceny. Further, as stated above, Melton testified that the
security guard stood very close to her and made his accusations
in a "very loud tone" of voice during an encounter that lasted
approximately ten minutes. She also testified that, during this
time, people were close by, and they stopped "to listen and see
what was going on." We hold that, when considered in the light
most favorable to Melton, this evidence was sufficient to permit
a reasonable inference that the accuser's words were heard and
understood by a third party as referring to Melton and as
imputing the commission of a crime.
In addition, we conclude that Melton's testimony provided
evidence from which a jury reasonably could infer that her
accuser lacked reasonable grounds for his belief that she had
committed larceny or acted negligently in failing to ascertain
the truth, and that her accuser was a Food Lion employee acting
within the scope of his employment. We also note that, since an
award of general damages for defamation is based on a concept of
per se injury, Melton was not required to present further proof
of injury or loss. See Snead v. Harbaugh, 241 Va. 524, 528, 404
S.E.2d 53, 55 (1991). Based on this record, we hold that Melton
presented prima facie evidence of defamation, and that the trial
court erred in striking her claim. 1
1
We reject Food Lion's claim that the trial court's ruling
was harmless error since the jury failed to return a verdict for
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Melton next argues that the trial court erred in excluding
evidence, as part of her case in chief, of Food Lion's original
admissions that the man who accosted her was a Food Lion employee
acting within the scope of his employment. Melton contends that,
although the trial court later permitted Food Lion to amend these
responses, the original responses nevertheless retained their
character as admissions in the case.
In response, Food Lion asserts that, even if the trial court
erred in refusing to allow Melton to introduce these admissions
into evidence, any such error was harmless, because the jury
learned the substance of these admissions during Melton's
cross-examination of Derrick Slater. Further, since the trial
Melton on her claim for insulting words. Food Lion contends that
the jury necessarily would have returned a similar verdict
against Melton had they considered the claim of defamation,
because an action for insulting words differs from an action for
defamation only in that no proof of publication is necessary to
support a claim for insulting words. Tweedy v. J.C. Penney Co.,
216 Va. 596, 601 n.6, 221 S.E.2d 152, 156 n.6 (1976). However,
this issue is rendered moot by the conclusion, reached in our
determination of the second issue in this case, that other
reversible error requires a new trial of this case on all claims
that are the subject of this appeal, including the claim of
insulting words.
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court did not instruct the jury that this information could be
considered only for impeachment purposes, Food Lion argues that
Melton was not prejudiced by the trial court's ruling. We
disagree with Food Lion.
We have not been called upon previously to address the issue
whether admissions made by written answer to a request under Rule
4:11, which are thereafter amended under Rule 4:11(b), may be
introduced as substantive evidence in the trial of the pending
action. The effect of these admissions is governed by Rule
4:11(b), which provides in relevant part:
Any matter admitted under this Rule is conclusively
established unless the court on motion permits
withdrawal or amendment of the admission. . . . [T]he
court may permit withdrawal or amendment when the
presentation of the merits of the action will be
subserved thereby and the party who obtained the
admission fails to satisfy the court that withdrawal or
amendment will prejudice him in maintaining his action
or defense on the merits.
In this case, since Food Lion was permitted to amend its
initial responses, the original admissions could not be used to
establish conclusively that Melton was accosted by a Food Lion
employee acting within the scope of his employment. Cf. State
Farm Mut. Ins. Co. v. Haines, 250 Va. ___, ___, ___ S.E.2d ___,
___ (1995) (decided this day). Thus, the matters addressed in
those admissions were returned to the case as issues Melton was
required to prove. However, we hold that Melton was entitled to
introduce as substantive evidence Food Lion's original responses,
since Rule 4:11 contains no provision prohibiting such a use of
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admissions that have been amended with leave of court.
Therefore, we conclude that the trial court erred in barring
Melton from introducing those admissions into evidence as part of
her case in chief.
We reject Food Lion's contention that the exclusion of this
evidence from Melton's case in chief was harmless error.
Although these written admissions were not conclusive of the
matters that were addressed, they were deliberately made and thus
provided evidence of a persuasive nature that may have furnished
the strongest and most convincing evidence of truth. See Tyree
v. Lariew, 208 Va. 382, 385, 158 S.E.2d 140, 143 (1967); Watson
v. Coles, 170 Va. 141, 150, 195 S.E. 506, 509 (1938). The weight
to be given such admissions was an issue for the jury's
determination. Tyree, 208 Va. at 385, 158 S.E.2d at 143.
Therefore, we hold that Melton was prejudiced by the trial
court's ruling. Further, since this error affected the
presentation of evidence on the four counts that are the subject
of this appeal, Melton is entitled to a new trial on all these
2
counts.
2
Melton does not challenge in this appeal the trial court's
ruling striking her evidence of intentional infliction of
emotional distress. Thus, Melton is not entitled to a new trial
on this count. See Rule 5:17(c). Further, in view of our ruling
that Melton is entitled to a new trial on the other counts, we do
not reach Melton's assignment of error regarding the trial
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For these reasons, we will reverse the trial court's
judgment and remand the case for a new trial on the counts of
defamation, insulting words, false imprisonment, and negligence. 3
Reversed and remanded.
court's denial of her motion for a new trial.
3
Based on our disposition of Melton's appeal, we also do not
reach Food Lion's assignments of error, which challenge the
sufficiency of the evidence to support the jury's verdict and the
jury's award of damages.
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