Wegner v. Delly-Land Delicatessen, Inc. , 270 N.C. 62 ( 1967 )

153 S.E.2d 804 (1967) 270 N.C. 62

Edward W. WEGNER
v.
DELLY-LAND DELICATESSEN, INC., a Corporation.

No. 277.

Supreme Court of North Carolina.

April 12, 1967.

Peter H. Gerns, Charlotte, for plaintiff appellant.

Carpenter, Webb & Golding, by James P. Crews, Charlotte, for defendant appellee.

LAKE, Justice.

When the evidence is considered in the light most favorable to the plaintiff, as it must be in reviewing the judgment of nonsuit, it shows a well-behaved invitee in a restaurant, the proprietor of which holds itself out as serving the public, assaulted, without justification or provocation, by an employee of the restaurant owner and severely beaten and injured. The plaintiff attacks the judgment of nonsuit upon two grounds: (1) The evidence is sufficient to support a finding that the defendant, itself, violated a duty owed to its invitee; (2) the evidence is sufficient to support a finding that the defendant is liable for the wrongful act of its employee.

It is elementary that the proprietor of a business establishment owes to those who enter upon the premises in response to his invitation, express or implied, for the purpose of purchasing the goods or services which the proprietor represents himself as offering to sell or to render, the duty to use reasonable care to keep the premises in a safe condition for such use by such invitee. Hedrick v. Tigniere, 267 N.C. 62, 147 S.E.2d 550, and cases there cited. This duty extends to the proprietor of a restaurant or other establishment serving meals for compensation. Sledge v. Wagoner, 248 N.C. 631, 104 S.E.2d 195. As a corollary to or application of this rule, proprietors of such establishments have been held liable to invitees therein assaulted by an employee of the establishment whom the proprietor knew, or in the exercise of reasonable care in the selection and supervision of his employees should have known, to be likely, by reason of past conduct, bad temper or otherwise, to commit an assault, even though the particular assault was not committed within the scope of the employment. See: Brittingham v. Stadiem, 151 N.C. 299, 66 S.E. 128; Annot., 40 A.L.R. 1212, 1215; Annot., 114 A.L.R. 1033, 1041. This basis for imposing liability upon the proprietor for an assault by his employee is, however, the negligence of the proprietor himself, in the selection or supervision of his employee.

In Robinson v. Sears, Roebuck & Co., 216 N.C. 322, 4 S.E.2d 889, Seawell, J., dissenting, was of the opinion that the more extensive duty imposed upon a common carrier of passengers for the protection of such passengers from assaults while in the carrier's conveyance, should be imposed upon all corporate proprietors of business establishments. This suggestion was, however, not adopted by the majority of the Court and the view so taken by the majority is in accord with decisions in other jurisdictions. Rahmel v. Lehndorff, 142 Cal. 681, 76 P. 659; Davidson v. Chinese Republic Restaurant Co., 201 Mich. 389, 167 N.W. 967, L.R.A.1918E, 704.

In the present case, the complaint does not allege, and there is no evidence whatever tending to show, a breach by the defendant of its duty to keep its premises in a reasonably safe condition for use by its invitees. There is nothing to indicate that the defendant should have known that its employee was a high tempered, quarrelsome or dangerous man. There is neither allegation nor evidence that this employee had engaged in any affray or attack upon another person prior to this occurrence. There is no evidence to show that he had been in the employ of the defendant prior to the day on which this occurrence took place, or that the defendant failed to make reasonable investigation of his suitability for the position of bus boy prior to his employment.

There is no evidence to support a finding that any officer or other employee of the defendant failed to act promptly to restrain Johnson when the difficulty arose. On the contrary, the evidence supports the statement in the plaintiff's brief that, "taking this evidence most strongly against the defendant, the entire incident took but seconds from the time of the first verbal contact between plaintiff and the bus boy to the final blow administered by the latter."

Considering the evidence in the light most favorable to the plaintiff, it fails, therefore, to show any act or omission by the defendant, itself, which would constitute a breach of its duty to its invitee.

It is equally elementary that an employer is liable to a third person injured by the wrongful act or neglect of his employee if, but only if, such act or omission occurred in the course of the employment; that is, while the employee was engaged in doing something he was employed, or otherwise authorized, to do for the defendant employer. Duckworth v. Metcalf, 268 N.C. 340, 150 S.E.2d 485; Hinson v. Virginia-Carolina Chemical Corp., 230 N.C. 476, 53 S.E.2d 448; Dickerson v. Atlantic Refining Co., 201 N.C. 90, 99, 159 S.E. 446. If the servant was engaged in performing the duties of his employment at the time he did the wrongful act which caused the injury, the employer is not absolved from liability by reason of the fact that the employee was also motivated by malice or ill will toward the person injured, or even by the fact that the employer had expressly forbidden him to commit such act. Hammond v. Eckerd's, 220 N.C. 596, 18 S.E.2d 151; Dickerson v. Refining Co., supra; West v. F. W. Woolworth Co., 215 N.C. 211, 1 S.E.2d 546. See also, Annot., 34 A.L.R. 2d 372, 396. On the other hand, it is not sufficient to hold the employer liable that the wrongful act occurred while the employee was at his post of duty during the hours of work. Robinson v. McAlhaney, 214 N.C. 180, 198 S.E. 647; Snow v. DeButts, 212 N.C. 120, 193 S.E. 224. Likewise, it is not enough to render the employer liable that the employee did the wrongful act for the purpose of benefiting the employer. Hammond v. Eckerd's, supra. If the act of the employee was a means or method of doing that which he was employed to do, though the act be wrongful and unauthorized or even forbidden, the employer is liable for the resulting injury, but he is not liable if the employee departed, however briefly, from his duties in order to accomplish a purpose of his own, which purpose was not incidental to the work he was employed to do. Long v. Eagle Store Co., 214 N.C. 146, 198 S.E. 573; Dickerson v. Atlantic Refining Co., supra; Robinson v. McAlhaney, supra.

These well known principles govern the liability of an employer for an assault committed by his employee upon a third party. Hoppe v. Deese, 232 N.C. 698, 61 S.E.2d 903; Robinson v. Sears, Roebuck & Co., supra; Robinson v. McAlhaney, supra; Long v. Eagle Store Co., supra; Snow v. DeButts, supra; Munick v. Durham, 181 N.C. 188, 106 S.E. 665, 24 A.L.R. 538. As stated by Barnhill, J., speaking for the Court in Robinson v. McAlhaney, supra, "If an assault is committed by the servant, not as a means or for the purpose of performing the work he was employed to do, but in a spirit of vindictiveness or to gratify his personal animosity or to carry out an independent purpose of his own, then the master is not liable."

Applying these principles, this Court in Long v. Eagle Store Co., supra, held the employer liable for false arrest of a suspected shoplifter by the assistant manager of the employer's store on the ground that the assistant manager was employed to protect the goods in the store from theft, and his act was a means of carrying out and for the purpose of carrying out that duty. However, in Snow v. DeButts, supra, though the assault occurred on the premises of the employer, and though the quarrel grew out of a conversation relating to testimony of the plaintiff in litigation concerning the employer, the employer was held not liable for the assault because it had no relation to the work the attacking employee was employed to do.

Similarly, in other jurisdictions, the employer has been held liable for assaults by employees having responsibility for the collection of the price of goods sold or services rendered, or for the adjustment of complaints by customers, or for the maintenance of order upon the premises, the assault being thought to have been committed for the purpose of carrying out such duty. Dilli v. Johnson, 71 App.D.C. 139, 107 F.2d 669; Crum v. Walker, 241 Iowa 1173, 44 N.W.2d 701; Schultz v. Purcell's, Inc., 320 Mass. 579, 70 N.E.2d 526; Bryce v. Jackson Diners Corp., 80 R.I. 327, 96 A.2d 637; Anderson v. Covert, 193 Tenn. 238, 245 S.W.2d 770. See also, Annot., 34 A.L.R. 2d 372, 380, 414-421. However, owners of restaurants have been held not liable for assaults by waitresses upon patrons, the assault having no relation to the duty of the employee except that it was the culmination of remarks exchanged while the waitress was proceeding with her work and the customer waiting for or consuming his meal. Fisher v. Hering, 88 Ohio App. 107, 97 N.E.2d 553; Norris v. China Clipper Cafe (Tex.Civ.App.), 256 S.W.2d 664.

In Norris v. China Clipper Cafe, supra, the facts were somewhat similar to the defendant's version of those before us. The waitress in an eating establishment had some difficulty in taking the orders of a wedding party, some members of which had apparently been consuming numerous toasts to the bride. At her request, the manager assigned a different waitress to this party and she turned her attention to customers at other tables nearby. In serving them, she was obliged to pass and repass the table at which the wedding party sat. As she did so, she and the bride exchanged various comments relating to their respective appearances, hairdos, figures and appropriate zoological classifications. These conversations were brought to an abrupt end when the waitress lifted the bride from her seat by her hair, slapped her and deposited her on the floor of the cafe. The owner of the cafe was held not liable for the reason that the assault was not a means of performing any duty for which the waitress was employed and so was not in the course of her employment.

In the present case, the employee who committed the assault was a bus boy. He had no managerial responsibilities. He was not employed to take orders for food, serve them or collect the bills. His job was to collect and remove dishes, carry trays, and the like. Whatever the source of his animosity toward the plaintiff may have been, he did not strike the plaintiff as a means or method of performing his duties as bus boy. A different situation would be presented if the glass which he "slammed down" upon the table had shattered and injured the plaintiff, for there the employee would have been performing an act which he was employed to do and his negligent or improper method of doing it would have been the act of his employer in the contemplation of the law. However, the assault, according to the plaintiff's testimony, was not for the purpose of doing anything related to the duties of a bus boy, but was for some undisclosed, personal motive. It cannot, therefore, be deemed an act of his employer and this basis for attacking the judgment of nonsuit also fails.

It is not necessary to determine the correctness of rulings upon the admission of evidence, which the plaintiff assigns as error, since neither the admission of that which was excluded nor the exclusion of that which was admitted would have affected the correctness of the judgment of nonsuit.

Affirmed.

HIGGINS, J., dissents.