Opinion
32512.
DECIDED JULY 16, 1949. REHEARING DENIED JULY 28, 1949.
Action for damages; from Fulton Superior Court — Judge Pharr. March 14, 1949. (Application to Supreme Court for certiorari.)
Saul Blau, Albert E. Mayer, for plaintiff.
Matthews, Long Moore, for defendant.
The court did not err in granting a nonsuit in the instant case, for the reasons set out in the opinion.
DECIDED JULY 16, 1949. REHEARING DENIED JULY 28, 1949.
Mrs. Sophie Davidson brought a petition to recover damages from Harris Inc. Substantially, the petition alleged that the defendant operated a restaurant on the lobby floor of the Hurt Building, and approximately underneath this restaurant the defendant also operated a grill, in the basement. There was a two-flight stairway between the restaurant on the lobby floor and the grill. There was a landing about half-way down the stairway. Along the stairway was a handrail. There was a sign on the lobby floor indicating the stairway to the grill, and also another sign at the landing indicating the way to the grill down the stairway. On the occasion in question the plaintiff had descended the stairway as an invitee to take lunch in the grill. After completing the lunch, between 2 and 2:30 p. m., and at approximately 2:15 p. m., the plaintiff started to ascend from the grill to the lobby floor. After she had ascended to the landing from the grill, a waitress, Mrs. Ethel Wheeler, fell from the stairway between the landing and the lobby floor and struck the plaintiff with great force, knocking and pressing the plaintiff against the handrail and thereby inflicting on the plaintiff severe bodily injuries. It is further alleged: that the defendant maintained and operated as a part of its restaurant a kitchen in the basement, and provided in the kitchen a rest room and locker room for its female employees working both in the restaurant on the lobby floor and in the basement; that this rest room and locker room were provided for the employees for their use and benefit for the purpose of enabling them to carry out their necessary and natural functions of life and to dress themselves and change their clothes, and for the pleasure and convenience of the employees to better carry on their duties for the defendant; that the employee, Ethel Wheeler, was assigned as a waitress by the defendant to the restaurant on the lobby floor; and that Ethel Wheeler was on her way from the restaurant on the lobby floor to use the rest room in the basement, acting within the scope of her employment. It is further alleged that Ethel Wheeler did not approach and descend the said stairs in a careful and diligent manner, but in a careless and negligent manner, "running, smoking, playing, and jostling with another employee of the defendant;" and that, as a result of the negligence of Ethel Wheeler, she fell down the stairs against the plaintiff, knocking the plaintiff against the railing and thus inflicting the injuries described in the petition. It is further alleged that the plaintiff could not have avoided the injuries inflicted upon her. The specifications of negligence alleged in the petition are: "(a) In that its said employee, Ethel Wheeler, did not approach and descend said stairs in a careful and diligent manner. (b) In that its said employee, Ethel Wheeler, did approach and descend the said stairs in a careless and negligent manner. (c) In that defendant failed in its duty to protect petitioner as an invitee from the negligence of the said employee."
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 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 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 her master'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 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, 71 Ga. App. 569 (3) ( 31 S.E.2d 421), the court said: "The uncontroverted evidence in the present case shows that the claimant was injured during her lunch-hour period, while she was going from the room on the fourth floor of the building where she worked to the beauty parlor on the second floor of the same building to have her hair dressed; that she had forty-five minutes for lunch, which time was her own to use as she chose. Held: her preparation for and going to have her hair dressed was her individual affair, and was no part of her employer's work." While it is true that that is a compensation case, the principle of law is the same. The employee, there as here, was "on her own" during the lunch period. In Austin v. General Accident c. Corp., 56 Ga. App. 481 ( 193 S.E. 86), another compensation case, this court said: "The claimant . . was employed by the Henry Grady Hotel Co. as an elevator operator. . . She was allowed at least one 15-minute rest period every day . . and during these rest periods she was at liberty to obtain water [and other things], the only requirement being that she be back on the job at the end of fifteen minutes. During one of these rest periods . . she went into the basement of the hotel . . and in attempting to obtain some ice out of a machine used to crush ice, her hand was severely injured by some of its moving parts." In that case, following the decision of the Supreme Court in Ocean Accident Guarantee Corp. v. Farr, 180 Ga. 266 ( 178 S.E. 128), the Court of Appeals held that the injury to the claimant did not arise out of her employment, and affirmed the denial of compensation.
In Great Atlantic Pacific Tea Co. v. Cox, 51 Ga. App. 880 ( 181 S.E. 788), this court said: "1. It is the duty of one who invites members of the general public to come to his place of business to protect such customers or invitees from injury caused by misconduct of his own employees in the conduct and scope of his business, and from the misconduct of other persons who come upon the premises.
"2. If the conduct of such employees outside of the scope 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 of Moone v. Smith, 6 Ga. App. 649 ( 65 S.E. 712), to this effect: "If, therefore, there is any reasonable apprehension of danger to such customer from the unlawful conduct of other customers or third persons, or if personal injury from the misconduct of other customers or third persons can be prevented by the proprietor by the exercise of ordinary care and diligence, he may be guilty of negligence for his failure to use it, and consequently responsible in damages." It will thus be seen, from the principle of law discussed in the Cox case, supra, that while it is the duty of the proprietor, inviting persons to come on the premises, to protect such customers from injury caused by misconduct of his own employees and others, nevertheless this duty does not arise until the danger is apparent or the circumstances are such as would put a prudent person on notice of the probability of danger. It will be noted from the evidence in the instant case that the proprietor of the defendant had no knowledge or reason to believe that Ethel Wheeler would engage in such conduct as is alleged in the petition. And it will be further noted that she was on her own time during her lunch period and could go any place and do anything she pleased during this period. While it is true that she was required as a waitress to be neat in appearance, she was not required to freshen herself in the rest room of the defendant. It therefore follows, in our opinion, that in the fifteen minutes of time left before she was to return to work and while she was of her own volition on her way to the rest room to freshen up, she could not be said to have been engaged in the furtherance of her master's business. She was at that time on the same footing as an invitee and, as observed above, the master would not be liable for her conduct, as alleged in the petition, until he knew or had reasonable grounds to be chargeable with knowing that her conduct, as alleged, was occurring and in reasonable probability would result in injury to a customer of the employer. There is no allegation in the petition and no evidence in the record to support the contention that the defendant is liable in damages for the injury which the plaintiff received. In that view the court did not err in granting a nonsuit.
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, 49 Ga. App. 600 ( 176 S.E. 104); Plumer v. Southern Bell Telephone Co., 58 Ga. App. 622, 627 ( 199 S.E. 353); Causey v. Swift Co., 57 Ga. App. 604 ( 196 S.E. 228), and 35 Am. Jur., § 561, "Master and Servant." Counsel also cite, in this connection, 57 C. J. S. 413, § 617, as follows: "Where it is doubtful whether a servant in injuring a third person was acting within the scope of his authority, the doubt will be resolved against the master. . . At least to the extent of requiring the question to be submitted to a jury for determination." As to this last quotation, we do not think that there is a doubt as to whether or not Ethel Wheeler injured the plaintiff while about the master's business. But under the authorities on which we base this decision, she was not about her master's business.
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 of his business; 35 Am. Jur., § 552, "Master and Servant," as to the test of liability; Dawson Motor Co. v. Petty, 53 Ga. App. 746, 748; Limerick v. Roberts, 32 Ga. App. 755; McDonald v. Simpson-Crawford Co., 100 N.Y. 269.
The court did not err in granting a nonsuit in the instant case.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.