Opinion
34631.
DECIDED MAY 16, 1953. REHEARING DENIED JUNE 1, 1953.
Action for damages. Before Judge Andrews. Fulton Superior Court. March 18, 1953.
Thomas J. Long, for plaintiff in error.
Hugh Howell, Jr., Howell Howell, John I. Hynds, contra.
The petition here, which alleges that the manager of a theatre was guilty of wilful and malicious conduct resulting in injury to the plaintiff, fails to state a cause of action against the defendant theatre company because it appears from the allegations thereof that the manager's acts were perpetrated solely for his personal gratification. No facts are alleged such as would constitute actual notice to the master sufficient to raise a duty as to it to protect its invitees from such acts; none are alleged sufficient to put it on notice or inquiry as to the criminal propensities of its employee, and none sufficient to put the employer on notice so that its retention of the employee in its service would constitute negligence.
DECIDED MAY 16, 1953 — REHEARING DENIED JUNE 1, 1953.
Glenn Burney, by his mother, Bertha Bentley as next friend, filed an action for damages against Community Theatres Company, in the Superior Court of Fulton County, alleging in substance: that the defendant operates a named theatre of which its employee, Joseph B. Allen, Jr., is manager; that Allen was in charge of an office and film room in the basement of the theatre; that the petitioner is a young child nine years of age, whose mother permits him to attend the theatre on Saturday afternoons; that because of his tender age he did not know and could not have discovered the manager's character; that the said Allen engaged the petitioner in conversation and told him he had a job for him, and thereupon took him to the basement room, on the floor of which was spread a mat, and committed sodomy upon him; and that he repeated this act on at least six successive Saturdays. It is further alleged by amendment (which was filed after the bill of exceptions was dismissed by this court on a previous appearance of the case, Community Theatres Co. v. Burney, 87 Ga. App. 165, 73 S.E.2d 104), that eight acts of sodomy were committed upon the petitioner and five acts upon another named child nine years of age, as well as numerous other acts upon other small boys whose names are unknown to petitioner.
It is also alleged that there was in the film room in the basement a mat, which formed no part of the equipment of the film room, and on which the acts of sodomy were committed.
Demurrers to the petition as amended were filed, and a final judgment was entered, sustaining one special demurrer and overruling the general demurrer. The exception is to the latter portion of this judgment.
The allegations of the petition, to the effect that the defendant knew or in the exercise of ordinary care should have known of the criminal propensities of the manager of its theater, are sufficient to show implied or constructive notice only. Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030 (6) ( 48 S.E. 438); Central of Ga. Ry. Co. v. Tapley, 145 Ga. 792 (2) ( 89 S.E. 841); Echols v. Patterson, 60 Ga. App. 372 (2) ( 4 S.E.2d 81). No facts are alleged sufficient to put the employer on such notice or inquiry that its retention of the employee in its service would constitute negligence on its part. Hulsey v. Hightower, 44 Ga. App. 455 ( 161 S.E. 664); Henderson v. Dade Coal Co., 100 Ga. 568 ( 28 S.E. 251); Davidson v. Harris, Inc., 81 Ga. App. 665 ( 59 S.E.2d 551); Parry v. Davison-Paxon Co., 87 Ga. App. 51 ( 73 S.E.2d 59); Fraser v. Smith Kelly Co., 136 Ga. 18 ( 70 S.E. 792).
Therefore, whether or not the defendant in this case may be held liable for the acts of sodomy committed by the manager of its theater depends upon whether the tortious misconduct may be imputed to the defendant, and this in turn depends upon whether it took place within the scope of Allen's employment as manager of a neighborhood theater. A master may be liable for even the wilful and malicious torts of his servant, but to sustain liability it must appear that the tort was committed within the scope of the master's business. Frazier v. Southern Ry. Co., 200 Ga. 590 (2) ( 37 S.E.2d 774). A general allegation of agency will yield to specific allegations of fact which in themselves negative the agency, or negative agency for the purpose and particular set of facts under which it is sought to hold the master on the doctrine of respondent superior. Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 ( 58 S.E.2d 559). Although agency is alleged generally in this case, particular facts are set forth as to the occupation and employment of Allen, and nothing set forth raises the reasonable inference that the employer authorized or ratified his criminal acts, or that the perpetration of acts of sodomy upon children coming to the theater as the defendant's invitees was within the scope of his employment. Where the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and his employer, a proprietor of a place of amusement, is "not required to anticipate the improbable, nor to take measures to prevent a happening which no reasonable person would have expected." Atlanta Baseball Co. v. Lawrence, 38 Ga. App. 497 ( 144 S.E. 351). See also Livingston v. Seaboard Air Line R. Co., 106 F. Supp. 886; Henderson v. Nolting First Mortgage Corp., 184 Ga. 724 ( 193 S.E. 347, 114 A.L.R. 1022); Stafford v. Postal Telegraph Cable Co., 58 Ga. App. 213 ( 198 S.E. 117); Great Atlantic Pacific Tea Co. v. Cox, 51 Ga. App. 880 ( 181 S.E. 788); Parry v. Davison-Paxon Co., supra; Plumer v. Southern Bell Telephone c. Co., 58 Ga. App. 622 ( 199 S.E. 353); Smith v. Colonial Stores, 72 Ga. App. 186 ( 33 S.E.2d 360); Georgia Power Co. v. Shipp, 195 Ga. 446 ( 24 S.E.2d 764). The petition does not allege, and reason cannot conceive, in what manner the facts alleged here might possibly be connected with the employment rather than be deemed personal to the employee; and, this being so, the master cannot be held liable for such acts.
The cases cited in the excellent brief of counsel for the defendant in error are clearly distinguishable, and lie beyond the legal barrier which separates the non-liability from the liability of the master. In Moone v. Smith, 6 Ga. App. 649
(65 S.E. 712) the proprietor had actual notice of the fight in his establishment, from which a reasonable man could have presumed that harm would result to his invitees, yet he took no steps to protect them; whereas here no notice to the master is alleged, nor any facts sufficient to put the master on inquiry as to the criminal acts of its manager. In Savannah Electric Co. v. Wheeler, 128 Ga. 550 ( 58 S.E. 38), and Central of Ga. Ry. Co. v. Brown, 113 Ga. 414 ( 38 S.E. 989), the torts of the agent, although wilful and voluntary, arose in the prosecution of the master's business and within the scope of the employment. The servant may, as in Southern Grocery Stores v. Herring, 63 Ga. App. 267 ( 11 S.E.2d 57), be "at the time engaged in serving the master," and, if he seeks his master's ends by unlawful means (such as seeking to drive a picket from the establishment by the use of black pepper and ammonia) the master is liable; but this is not true where the situation is precipitated by the employee solely for his personal gratification, as opposed to his desire to accomplish a result in line with his employment. Radio Cabs, Ltd. v. Tolbert, 86 Ga. App. 181 ( 71 S.E.2d 260), Co-Op Cab Co. v. Singleton, 66 Ga. App. 874 ( 19 S.E.2d 541), Southern Ry. Co. v. Chambers, 126 Ga. 404 ( 55 S.E. 37), Gasway v. A. W. P. R. Co., 58 Ga. 216, Savannah, Florida c. Ry. Co. v. Quo, 103 Ga. 125 ( 29 S.E. 607), and like cases are distinguishable because they involve the duty of extraordinary care owing to a passenger by a common carrier for hire. As is stated in Co-Op Cab Co. v. Singleton, supra. "The principles of law which are applicable in litigation growing out of the relationship of principal and agent or master and servant do not fully define the rights, liability, and duties of common carriers and their passengers."
The petition did not state a cause of action against the defendant employer, and the trial court erred in overruling the general demurrer.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.