Andrews v. Norvell

• Citation: 15 S.E.2d 808
• Decision Date: 02 July 1941
• Docket Number: No. 28848.,28848.
• Parties: ANDREWS. v. NORVELL.
• Court: United States Court of Appeals (Georgia)

15 S.E.2d 808

ANDREWS.

v.NORVELL.

No. 28848.

Court of Appeals of Georgia,

Division No. 2.

July 2, 1941.

Syllabus by the Court.

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.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by C. F. Andrews against Paul Nor-vell to recover for personal injuries. To review a judgment dismissing the petition, the plaintiff brings error.

Judgment reversed.

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 sustantially 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 Carpenterserves 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.

Nathan Jolles and Paul T. Chance, both of Augusta, for plaintiff in error.

Curry & Curry and Maurice Steinberg, all of Augusta, for defendant in error.

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