Community Theatres Co. v. Bentley

• Decision Date: 16 May 1953
• Docket Number: No. 2,No. 34631,34631,2
• Citation: Community Theatres Co. v. Bentley, 88 Ga.App. 303, 76 S.E.2d 632 (Ga. App. 1953)
• Parties: COMMUNITY THEATRES CO. v. BENTLEY
• Court: Georgia Court of Appeals

Page 632

76 S.E.2d 632

88 Ga.App. 303

COMMUNITY THEATRES CO. v.BENTLEY.

No. 34631.

Court of Appeals of Georgia, Division No. 2.

May 16, 1953.

Rehearing Denied June 1, 1953.

Syllabus by the Court.

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.

Glen Burney, by his mother, Bertha Bently 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 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 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.

Thomas J. Long, Atlanta, for plaintiff in error.

Howell & Howell, John I. Hynds and Hugh Howell, Jr., Atlanta, for defendant in error.

TOWNSEND, Judge.

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 notice or inquiry such 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 respondeat 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, 'was not required to anticipate the improbable, nor to take...