Opinion
35180.
DECIDED MAY 15, 1954.
Action for damages. Before Judge Whitman. Fulton Superior Court. March 2, 1954.
Smith, Field, Doremus Ringel, Ogden Doremus, Palmer Ansley, for plaintiff in error.
T. J. Long, contra.
Neither count of the petition here, which alleges that the manager of a theatre was guilty of wilful and malicious conduct resulting in injury to the plaintiff, states a cause of action against the defendant theatre company, because it appears from the allegations that the manager's acts were perpetrated solely for his personal gratification. No facts are alleged such as would constitute actual notice to the employer sufficient to raise a duty on its part to protect its invitees from such acts; none are alleged sufficient to put it on notice or inquiry as to the criminal propensity of its employee to commit sodomy, and none are sufficient to put the employer on notice so that its retention of the employee in its service would constitute negligence.
DECIDED MAY 15, 1954.
Charles W. Dantos, as next friend of William Dantos, brought an action for damages against Community Theatres Company. The material allegations of the petition are substantially as follows: (2) The defendant operates the Techwood Theatre which is located on North Avenue in the City of Atlanta. (3) Charles W. Dantos is the father of William Dantos, a minor of eight years of age. (4) The defendant has damaged the plaintiff in the sum of $50,000. (5) During the months of June to September, 1951, inclusive, the defendant operated the theatre in question. (6) At all times alleged, the theatre was open to the public and catered to the entertaining of children, and on Saturdays ran special shows for children. (7) The theatre is on the first floor of the building, and there is a trap door in the floor of the office of the theatre leading to the basement of the theatre where film is stored. (8) At all times alleged, Joseph B. Allen, Jr., was the agent of the defendant and its manager in charge of the theatre. (9) As manager of the theatre, Allen had access to and was in charge of the office and film room of the theatre; and on July 6, 1951, and at all times mentioned herein, Allen was the agent, servant, and employee of the defendant, and on that date he was going about the management of the theatre within the scope of his employment. (10) The plaintiff is a young child only eight years of age, and his mother and father allowed him to attend the Techwood Theatre on Saturdays and certain other days of the week on and about July 6, 1951. (11) The plaintiff lived with his mother and father in the neighborhood of the theatre. (12) On July 6, 1951, the plaintiff was taken to the theatre by his mother at or about 4 p. m., and he purchased a ticket and went in to see the performance. (13) At about 6 p. m. on that day, the plaintiff's mother returned to the theatre to take the plaintiff home, but the movie had not been completed, and the plaintiff was allowed to remain until it was completed and he did not return home until approximately 7 p. m. on that day. (14) As the plaintiff was leaving the theatre, he was confronted by Allen who was the agent and manager of the defendant's theatre at that time, and Allen asked the plaintiff if he would like to earn some money. Allen then took the plaintiff down through the trap door into the basement, had him remove his clothing, and committed sodomy upon him. (15) As manager of the theatre at the time, Allen committed further acts of sodomy upon the plaintiff. (16) At all times that these acts of sodomy were committed on the plaintiff, Allen was in charge of the theatre as its manager, and after committing these acts Allen remained on the premises and in charge of the theatre as manager. (17) A mat in the film room located in the basement of the theatre and upon which the plaintiff was induced to lie when the acts of sodomy were committed upon him was no part of the operating equipment of the theatre. (18) The plaintiff was only seven years old when the acts of sodomy were committed upon him, and the defendant owed him the duty of protecting him from being assaulted in such manner. (19) When the plaintiff was so assaulted by Allen, Allen was in the theatre and in and about the business of the defendant as manager of its theatre. (20) Allen was a person of bad character, and this fact was known to the defendant or by the exercise of ordinary care should have been known to it, because: (a) on March 19, 1934, Allen was arrested for wife beating; (b) on November 24, 1936, Allen was arrested and charged with attempted rape and was fined in the Police Court of the City of Atlanta; (c) on February 10, 1943, Allen was arrested for soliciting for prostitution; (d) on March 15, 1943, Allen was arrested in the City of Atlanta and charged with two cases of soliciting for prostitution; and (e) on May 21, 1943, Allen was arrested for being in a hotel room with a woman not his wife. (21) The offenses charged in paragraph 20 are matters of public record in the Finger Printing Bureau of Fulton County, and the defendant knew or by the exercise of ordinary care could have known these facts. The plaintiff, being only seven years of age, did not know of Allen's character and could not have discovered it. (23) The plaintiff is advised and believes upon information that Allen was committing acts of sodomy on other small children in the theatre, and had been guilty of this conduct over a period of time. (24) Allen has been indicted and convicted in the Superior Court of Fulton County for the assault upon the plaintiff and others. (25) The defendant knew that the mat in the film room was no part of the operating equipment of the theatre, and an examination would have disclosed this mat in the room and by the exercise of ordinary care the defendant could have discovered the mat and that its manager was committing acts of sodomy as alleged. (26) The defendant should not have employed Allen as manager of its theatre and placed him in charge to cater to the public and to small children, knowing of his conduct as alleged, and should not have allowed him to continue in its employment when it knew or by the exercise of ordinary care could have known of Allen's previous conduct. (27) The defendant owed the plaintiff the duty of protecting him from injury caused by the misconduct of its employee and manager while he was a patron of the theatre, having paid his admission and attending the show; and the defendant failed to protect him from such assaults. (28) As a result of such injurious assaults committed upon the plaintiff by Allen, the plaintiff has become very nervous, his speech has been impaired so that he cannot speak coherently, cannot rest, sleep, or sit still. (29) As a further result of Allen's unlawful assaults upon the plaintiff, he has become the subject of ridicule by his friends and neighbors, and has suffered great humiliation, embarrassment, and great mental and physical anguish and pain.
By amendment, the plaintiff added a second count to his petition, which was substantially the same as count 1, or the original petition, with the exception of the following paragraphs that added substantially the following allegations: (11) The plaintiff was an invitee of the defendant. (16) Within the knowledge of the defendant, Allen was a man of vicious and dangerous character, having a propensity to assault and molest and commit the act of sodomy upon young children, such as the plaintiff, and the defendant was negligent in retaining Allen as its employee after knowledge of this trait. (17) The plaintiff shows that the defendant had knowledge of the aforesaid propensities, in that: (a) there was a mat in the film room located in the basement of the theatre, which was not a part of the operating equipment of the theatre, and even a cursory examination would have disclosed this mat in the room, and by the exercise of ordinary care the defendant could have discovered the mat and that its manager was committing the acts of sodomy alleged; (b) Allen was a person of bad character, and this fact was known or could have been known by the defendant in the exercise of ordinary care in view of his police record, as shown by the allegations of paragraph 20 of count 1. (19) The defendant knew, or in the exercise of even slight care, could have observed and did observe the friendliness of Allen toward young children such as the plaintiff, and observed or could have observed that Allen was inducing young children such as the plaintiff into the basement to submit to acts of sodomy. (21) The defendant owed the plaintiff the duty of protecting him, as an invitee, from the injuries caused by the misconduct of its manager, who, within its knowledge, was a man of vicious and dangerous character and had a propensity to assault and molest and commit acts of sodomy upon the plaintiff and other young children of tender years. (24) The defendant was negligent in failing to provide a place of safety for the plaintiff in violation of Code § 105-401.
The trial court sustained general demurrers to both counts of the petition and dismissed it, and the plaintiff excepts to that judgment.
In an action, similar to the present one, brought against this same defendant for the same type of wilful and malicious conduct on the part of its same employee, this court, in reversing the trial court for its failure to sustain a general demurrer to the petition, held in Community Theatres Co. v. Bentley, 88 Ga. App. 303 ( 76 S.E.2d 632): "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 were 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." A comparison of the averments in that case with those in count 1 of the present petition reveals them to be substantially the same. It follows, therefore, that the trial court in the present case did not err in sustaining the general demurrer to count 1 of the petition.
It is true that in count 2 of the petition there are general averments of actual notice on the part of the defendant theatre company of the employee's propensity to commit sodomy on children. The specific allegations of fact concerning the manner in which the defendant theatre company is alleged to have acquired, or in the exercise of ordinary care should have acquired, such notice negative such general averments; for, upon examination of count 2 as a whole, it appears that the reasons stated as to why the defendant theatre company had such notice or should have had such notice are exactly the same reasons which were held in the Bentley case to be insufficient to put the defendant theatre company on notice of the employee's propensity to commit sodomy. It follows, therefore, that the ruling in the Bentley case is equally authority for the trial court's action on sustaining the general demurrer to count 2 as it is for its action on count 1. The additional averment that "the defendant knew, or in the exercise of even slight care, could have observed and did observe the friendliness of Allen toward young children such as the plaintiff, and observed or could have observed that Allen was inducing young children such as the plaintiff into the basement to submit to acts of sodomy," is simply an allegation of constructive notice and does not comply with the requirement stated in the Bentley case, that the defendant theatre company have actual notice of its employee's wilful and malicious conduct.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.