Andrews v. Norvell , 65 Ga. App. 241 ( 1941 )

1. The proprietor of a saloon is bound to exercise ordinary care and diligence to see that one who enters his saloon as a customer and patron is protected from wilful misconduct and practical jokes which cause bodily harm to the patron and customer, perpetrated by one employed by the proprietor to operate such saloon.

2. The petition set out a cause of action.

DECIDED JULY 2, 1941. C. F. Andrews filed suit against Paul Norvell in which he sought to recover damages on account of certain personal injuries alleged to have been sustained by him as the result of the wrongful conduct of the defendant's employee. It appears substantially from the petition that the defendant owned and operated a retail store at 1276 Broad Street in the City of Augusta at which he sold beer and whisky; that there is a bar in the establishment where the defendant's customers drink beer; that for the convenience of the defendant's patrons he has chairs and stools where they may sit and drink the beer purchased; that Tom Carpenter is in charge of and operates this place of business for the defendant and attends to the selling of the merchandise therein; that Carpenter and the customers in the store often "play pranks upon customers in the defendant's place of business;" that this fact "is well known to the defendant and that he has ratified and affirmed all that has been done in the place of business and the acts and conduct hereinafter alleged;" that on May 19, 1939, the plaintiff went into the defendant's place of business and purchased a beer, "and after some time he was offered a beer by Tom Carpenter and was offered a seat and told to ``sit down here' indicating a place where petitioner did sit down;" that shortly thereafter the plaintiff felt a burning sensation and discovered that he had been burned by "oil of mustard" which had been placed on the seat by Carpenter; that the plaintiff did not know this substance was on the seat and by the exercise of ordinary care could not have detected it; that the plaintiff was under no duty to "minutely examine" the seat; that the defendant owed the plaintiff a duty as a customer in the defendant's place of business "not to play pranks upon him or to make him the object of pranks that the defendant played or permitted to be played in his place of business, or to wilfully injure him under the disguise of a practical joke;" that the plaintiff was burned and injured by the oil of mustard coming into contact with him, and that for approximately six months the plaintiff had been unable, "by reason of said injuries" to perform any work.

The defendant demurred generally to the petition on the grounds that no cause of action was set forth, that the petition did not plainly, fully, and distinctly set forth a cause of action, and that it appeared from the facts of the petition that the act complained of was not done at the command or with the assent of the defendant, and was not within the range and in the prosecution of the defendant's business and within the scope of the employment of the agent or servant of the defendant. The defendant demurred specially to paragraph 5 of the petition and moved to strike it because the allegations thereof were irrelevant and immaterial, and because it was not alleged therein or elsewhere in the petition how or in what manner the defendant ratified and confirmed the alleged acts of his servant. The defendant specially demurred to the allegations of paragraph 8 on the ground that they were but erroneous legal conclusions of the pleader.

The plaintiff filed an amendment to the petition in which paragraph 4 was amended to read as follows: "Petitioner avers that the said defendant operates said place and it is in the charge of Tom Carpenter who attends to the selling of merchandise for said defendant and the conduct of said business, and that in the conduct of said business the said Tom Carpenter serves customers such drinks as may be ordered from said place of business." Paragraph 5 of the petition was amended to read as follows: "Petitioner avers that defendant's employee . . Tom Carpenter and the customers in said store do at often times play pranks upon customers in defendant's place of business and that the same is well known to the defendant and that he has ratified and confirmed all that has been done in his place of business and the acts and conduct hereinafter alleged, and that said ratification consisted in continuing said Tom Carpenter in the employ of the defendant after the defendant had full knowledge of the facts alleged in said petition." The defendant renewed his general and special demurrers to the petition. The defendant further specially demurred to paragraph 5 as amended by paragraph 2 of the amendment because the allegations set out were not sufficient in law to amount to an act done at the command of or with the assent of the defendant so as to bind the defendant for the acts of Carpenter. The defendant further specially demurred to such paragraph as amended on the ground that the ratification alleged therein was not sufficient in law to bind the defendant for the alleged acts of the defendant's employee.

On April 11, 1940, the judge overruled the demurrers to the petition as amended. On November 5, 1940, the judge revoked and vacated the previous order overruling the demurrers, and on the same date passed an order sustaining the general demurrer and dismissing the petition. To this judgment the plaintiff excepted. This case turns on whether the wrongful act of Carpenter, the employee of the defendant in charge of the beer saloon owned by the defendant, was committed within the line of duty of Carpenter as an employee of the defendant. An employer is liable for the wilful or malicious acts of his servants done in the course of his employment and within its scope although they are not done by the express direction of the employer or with his assent. The owner of an establishment operated for the purpose of selling beer to the public owes a duty to a customer, who is lawfully in his place of business by his implied invitation for the purpose of purchasing beer, to protect the customer against a wilful and intentional tort committed by one employed by him to operate such establishment. Lemaster v. Millers, 33 Ga. App. 451 (126 S.E. 875). See Ciarmataro v. Adams, 275 Mass. 521 (176 N.E. 610, 75 A.L.R. 1171); Archuleta v. Floersheim Mercantile Co.,25 N.M. 632 (187 P. 272, 40 A.L.R. 199). "Every person shall be liable for torts committed by his . . servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary." Code, § 105-108. The word "servant" as here used means an employee as well as a domestic servant. Cohn v. W. E. Cody Stable Co., 14 Ga. App. 234 (80 S.E. 661). "In the scope of his business," "in the scope of his employment," and similar expressions, have sometimes been given too narrow a meaning. If the act done by the employee is done in the prosecution of the business of the employer, that is, if the employee is at the time of the commission of the wrongful act engaged in serving his employer, the wrongful act is done "in the prosecution and within the scope of" the employer's business. See Fielder v.Davison, 139 Ga. 509 (77 S.E. 618).

The question is, was the employee of the defendant, at the time he committed the tort complained of, acting in an individual capacity or as an employee of the defendant in charge of the latter's beer saloon? The plaintiff entered the saloon to buy beer. The defendant maintained a bar in the beer establishment and there were also seats provided by the defendant for his customers to sit on. The plaintiff was given the beer by the defendant's employee in charge of the saloon, and was told by this employee to sit down and drink his beer. This employee personally conducted the plaintiff to a seat in the saloon and told him to sit down, which the plaintiff did. In all of these matters the defendant's employee clearly was acting in the prosecution and within the scope of his employment. This employee of the defendant had placed on the seat, to which he conducted the plaintiff and on which he told him to sit, a substance known as oil of mustard. He had placed this substance there with the intention of procuring the plaintiff or some other person and customer of the defendant to sit on the seat and thereby come in contact with the substance. It is alleged that oil of mustard is a substance which burns the flesh of a person coming in contact therewith. It is alleged that the purpose of the defendant's employee was to perpetrate a practical joke on the plaintiff, and to wilfully injure him by placing the oil of mustard on the seat and in causing the plaintiff to sit on it. The act of the servant in causing the plaintiff to take a seat in the saloon was an act within the scope of his employment, and the wrong which resulted in the plaintiff's injury consisted in the manner in which this employee performed this act. The employee was not acting in his individual capacity at the time he perpetrated the wrong on the plaintiff. Clearly, in all that this employee did he was acting for the defendant and under the direction of the defendant except in placing the oil of mustard on the seat. It was the duty of the defendant to provide seats in the saloon so that customers could be seated while they drank beer, and it was the duty of this employee to assist such customers and direct them in this regard. "A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or wilful tort."Fielder v. Davison, supra. It follows that, under the allegations of the plaintiff's petition as amended, the wrongful act of the defendant's employee complained of was in the prosecution of the defendant's business, and was not in the prosecution of the individual business of the employee. SeeAtlanta Hub Company v. Jones, 47 Ga. App. 778 (171 S.E. 470); J. M. High Co. v. Holler, 42 Ga. App. 657 (157 S.E. 209); Brown v. Union Bus Company, 61 Ga. App. 496 (6 S.E.2d, 388). The theory that one may be a servant one minute, and the very next minute step aside and act in his individual capacity, and then the next minute step back into his capacity as a servant is too refined a distinction. Since to exonerate the master from liability it is essential that the deviation should be for purposes entirely personal to the servant, where the servant, notwithstanding the deviation, is engaged in the master's business within the scope of his employment, it is immaterial that he join with this some private purposes of his own. See Limerick v. Roberts, 32 Ga. App. 755 (124 S.E. 806); 39 C. J. 1297. The act of the employee of the defendant in perpetrating the joke on the plaintiff was not entirely disconnected with the purposes of his employment. There was not a total departure from the course of the master's business, so that the servant might be said to be "on a frolic of his own" for which the master would no longer be answerable. See Pollock on Torts, 76.

The court therefore erred in revoking and setting aside the previous order overruling the general demurrer of the defendant and in sustaining such demurrer and dismissing the petition as amended.

Judgment reversed. Sutton and Felton, JJ., concur.