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 
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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 

counts.2

 

 2Melton 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. 

 3Based 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.