54 S.E.2d 290 | Ga. Ct. App. | 1949
The court did not err in granting a nonsuit in the instant case, for the reasons set out in the opinion.
No demurrers were filed. The defendant filed an answer in which it admitted that the defendant was a corporation with an office and agent and place of business in Fulton County, Georgia, and denied all of the other allegations of the petition. The plaintiff introduced evidence, and thereafter on motion a nonsuit was granted.
Substantially, the evidence is: It was stipulated as a fact that at the scene of the occurrence of the alleged injury there were certain signs, one of which had the word "grill" at the entrance to the flight of stairs going from the lobby floor to the basement, and another sign with the word "grill" at the landing which was half-way down from the lobby floor to the basement, and an arrow pointing in the direction which should be taken in order to reach the grill. The evidence further shows that the plaintiff had used these stairs for the purpose of descending to the defendant's grill in the basement of the Hurt Building, where she was served as a patron, and upon leaving the grill she used this same flight of stairs for the purpose of ascending from the basement to the lobby floor. At the time of the injury complained of, the plaintiff was on the platform of said stairs, which platform was a portion of the flight of stairs, and was located midway between the basement and lobby floor. This is the *790 flight of stairs which the plaintiff was directed by the signs to use for going to and coming from the grill operated by the defendant. There was an iron handrail along the outer edge of the stairway and following the line of steps leading from the lobby floor to the basement floor. While the plaintiff was on the platform landing, Ethel Wheeler, a waitress and employee of the defendant, was preparing to descend the said flight of stairs so as to go from the lobby floor to the rest room maintained by the defendant in the basement. The employee fell down the steps, striking the plaintiff and violently driving her against the iron railing adjacent to the platform upon which the plaintiff was standing. The plaintiff was not able to get out of the way of the falling employee.
Ethel Wheeler testified substantially that she had no idea how she came to fall down the steps; she did not do it intentionally; there was nothing wrong with the steps and no defects in them, and there was no trash or anything on the steps or on the landing. There was a handrail. She did not know if just prior to the time she fell she was using the handrail. She was feeling all right and knew of no reason why she should have fallen down the steps. The accident occurred after the waitress had her lunch. At the time she fell down the steps, she was going to refresh herself in the rest room located in the basement. This was prior to going back on duty, and she still had fifteen minutes of a thirty minute lunch period before she was to go back on duty. She was required to be neat tidy when going on duty.
One Meason testified substantially that on June 9, 1948, he was manager of the defendant's business in the Hurt Building. He knew that patrons of the defendant used the stairway going to the basement, and knew that the purpose of the sign was to direct the patrons to the stairway so they could get to the grill in the basement. Ethel Wheeler, the waitress, was required to wear a uniform and was required to be neat and clean in appearance while on duty. The rest room in the basement of the defendant's premises is to make it possible for employees to go down there and freshen themselves preparatory to waiting on customers. The waitresses were required to be neat and clean while on duty. The evidence further reveals that Ethel Wheeler and another employee were talking and laughing and "horse *791 playing" together. There was some evidence to the effect that the other employee "goosed" or tickled or shoved Ethel Wheeler. There was a conflict in the evidence on this question, Ethel Wheeler testifying that no such conduct occurred. The evidence reveals without dispute that both employees were on their lunch hour; that their time was their own; that, although they ate lunch in the establishment of the defendant, they could have eaten anywhere else during their thirty-minute lunch-hour period. Their time was their own to do with as they pleased. (a) Counsel for the plaintiff contend: (1) that the plaintiff at the time she was injured was using the stairway as an invitee of the defendant; (2) that the plaintiff was injured as a result of the negligence of the defendant's servant, Ethel Wheeler; (3) that at the time of the injury such servant, Ethel Wheeler, was acting in furtherance of her master's business and within the scope of her employment. It is contended by the plaintiff that the evidence would have authorized the jury to find the defendant liable under these three principles. As to the first principle, there seems to be no ground of contention, and there is none made, that the plaintiff at the time of the alleged occurrence was not an invitee of the defendant. As to the second contention, we might assume, without deciding, that the injury to the plaintiff was the result of the negligence of Ethel Wheeler. As to the third contention, it is our opinion that the case turns on whether or not Ethel Wheeler was acting in furtherance of hermaster's business and within the scope of her employment. We will therefore discuss the principle as contended by the plaintiff in this third ground.
The general rule of law is that the invitor owes the invitee a duty not to injure him by his negligence or that of his servants while they are acting within the scope of their employment or in furtherance of the master's business. Counsel for the plaintiff cite and discuss many authorities as to this principle of law. Counsel for the defendant make no issue as to this principle of law, but the question is, does the evidence in this case prove that Ethel Wheeler, at the time of the injury sustained by the plaintiff, was acting in the course of her employment and in *792
furtherance of her master's business? Let us then look to the authorities as to this issue. It seems clear to us that the case is controlled adversely to the plaintiff by the following authorities: In AEtna Casualty Surety Co. v. Honea,
In Great Atlantic Pacific Tea Co. v. Cox,
"2. If the conduct of such employees outside of the scope *793 of their employment, or of third persons or customers, is such as to cause any reasonable apprehension of danger to other customers or invitees because of such conduct, it is the duty of the proprietor to interfere to prevent probable injury; and a failure so to interfere, and consequent damage, will subject such proprietor to an action for damages for such negligent failure to prevent the injury.
"3. This duty of interference on the proprietor's part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger.
"4. An employer is not liable for the misconduct of an employee without the scope of his employment.
"5. The evidence in this case did not disclose any negligence for which the defendant was legally liable, and the verdict in favor of the plaintiff was contrary to law."
It will be noted that in the Cox case, supra, the court discusses at considerable length and quotes from the case ofMoone v. Smith,
Counsel for the plaintiff seek to distinguish the cases cited above, which we think control the issue in the instant case, and they also cite in addition thereto: Maryland Casualty Co. v.Sanders,
Counsel for the plaintiff cite many other authorities in support of their contention under 3 as subdivided above. We do not feel called upon to go into any lengthy discussion as to how the facts in such cases distinguish themselves from the facts in the instant case. But we will call attention to the additional authorities cited by the plaintiff: Code § 105-108, as to the liability of a person for the acts of his servant within the scope *795
of his business; 35 Am. Jur., § 552, "Master and Servant," as to the test of liability; Dawson Motor Co. v. Petty,
The court did not err in granting a nonsuit in the instant case.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.