Great Atlantic & Pac. Tea Co. v. Cox

• Decision Date: 26 September 1935
• Docket Number: 24430.
• Citation: 181 S.E. 788,51 Ga.App. 880
• Parties: GREAT ATLANTIC & PACIFIC TEA CO v. COX.
• Court: Georgia Court of Appeals

181 S.E. 788

51 Ga.App. 880

GREAT ATLANTIC & PACIFIC TEA CO v. COX.

No. 24430.

Court of Appeals of Georgia, First Division

September 26, 1935

Rehearing Denied Oct. 4, 1935.

Syllabus by the Court.

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.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit by W. T. Cox against the Great Atlantic & Pacific Tea Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

MacINTYRE J., dissenting.

Bryan Middlebrooks & Carter and John A. Dunaway, all of Atlanta, for plaintiff in error.

John I. Kelley, of Atlanta, for defendant in error.

GUERRY Judge.

W. T. Cox brought an action for $3,000 damages against the Great Atlantic & Pacific Tea Company. The jury returned a verdict for $450, and the question for determination is whether or not the court erred in overruling the defendant's motion for a new trial.

It is averred in paragraph 4 of the petition that on June 19, 1933, plaintiff, "who had for some time been a customer at said retail store, * * * went into said place of business for the purpose of buying groceries * * *; that, upon entering the store, the manager of the same, W. G. Anderson, began waiting upon * * * petitioner, and while * * * petitioner was thus engaged in the purchase of his groceries, one Sam Alvin [Oliver?], a clerk or helper of the defendant, began scuffling with one Ed Fowler * * * in the presence of and with the full knowledge of said * * * Anderson; that petitioner, not anticipating any injury * * * as a result of said scuffling, and relying upon the manager of said store to see that no injury or danger might occur to him or other customers by reason of the same, paid no particular attention to said Alvin [Oliver?] and Fowler, and during most of the time was standing with his back to them; that * * * said manager was facing them and had ample opportunity to observe the danger that your petitioner was in, and in the exercise of ordinary care and diligence should have observed the same, and yet, with such knowledge, failed to stop said scuffle or to warn * * * petitioner of impending danger, so that when * * * petitioner turned around the said Alvin [Oliver?] tripped or threw the said Fowler against your petitioner with great force and violence, and in some way struck * * * petitioner a terrific blow in the testicles; that as a result of said blow your petitioner was knocked down upon the floor, where he lay writhing with painful agony * * *; that as a result of said blow your petitioner's testicles and epididymis have been greatly enlarged and swollen, and his spermatic cord has been seriously affected; and your petitioner has further been wholly incapacitated to perform any labor of any kind since said injury, and on account thereof." In paragraph 7 it is averred that "the direct, proximate, and efficient cause of the injury and damage complained of herein" was that the defendant was negligent: (a) In that its manager "knowingly permitted a clerk or helper in the employ of defendant to wrestle and scuffle with another, as was done in said case, and to throw said person over, on, and against your petitioner under the circumstances alleged in this petition." (b) In that said manager "knowingly failed and neglected to stop said scuffling and wrestling in said store and to prevent the injury and damage complained of." (c) In that "it failed to preserve order in said store and to keep the same safe for its customers and your petitioner." (d) "In that the manager of said store, seeing the danger in which your petitioner was placed, failed to warn your petitioner of his danger in order that he might have avoided said injury and damage by getting out of the way of said scuffling and wrestling bout." (e) In that said manager, "with full knowledge of the fact that your petitioner was liable to be injured by reason of said wrestling and scuffling in said store, and with full knowledge of the fact that your petitioner was not cognizant of danger from what was going on until he turned around and received the blow and injury referred to, failed and neglected to stop said scuffle, or to warn * * * petitioner of his danger." (f) "The defendant was negligent by reason of the conduct of said clerk or helper in the premises." It is averred in paragraph 8 that "petitioner was acting in the exercise of all proper care and diligence for his own safety at the time, and, in the exercise of all proper care and diligence, could not have avoided the injury and damage complained of, and petitioner was wholly free from fault in the premises."

It appears from the evidence that the plaintiff went to the store to buy a bottle of milk and a cake for his lunch. He told the manager, Anderson, what he wanted, and Anderson told him to get the cake from the counter, and he (Anderson) would get the milk. Anderson then went into the back room to get the milk. While plaintiff was getting the cake, another employee of the store, Sam Oliver, was standing near by, arranging goods on the shelves, and another person, E. H. Fowler, came into the store, walked up behind Sam Oliver, and placed his hands over Oliver's eyes. Oliver bent over and swung Fowler around, and caused his foot to strike the plaintiff, causing the injury sued for. The plaintiff testified: "There wasn't anything on this occasion that made me think there was going to be a scuffle. * * * I seen the boys standing there. * * * They were both standing there locked up. [This was while plaintiff was getting the cakes from the counter.] I had never up to that time I got the case seen anything in that store to indicate that there was going to be a scuffle in there. I was standing in two feet of the boys. I was hit before I knew. He just throwed him up against me. It was done so quick that I did not have time to think nothing about it then. * * * Up to that time I had not seen any scuffle at all." The evidence shows without question that the plaintiff had greater or at least equal opportunity with the manager of the store to discover the likelihood or probability of there being any injury inflicted, or the happening of unseemly or boisterous conduct. The manager testified: "There was no scuffle going on when I went back there to get the milk. I did not see anything at all to put me on notice that there was going to be a scuffle. * * * I was getting a bottle of milk when it happened, and he [plaintiff] was following right behind me." He further testified that he did not see Fowler place his hands over Oliver's eyes. The testimony of Fowler and Oliver was to the same effect. Without further elaboration of the testimony, we think this evidence is insufficient to support a verdict for the plaintiff.

The plaintiff being an invitee, the defendant owed him the duty to protect him from injury caused by the misconduct of his own employees in the conduct and scope of his business and from the misconduct of other customers or third persons. In Moone v. Smith, 6 Ga.App. 649, 65 S.E. 712, it was said: "If, therefore, there is any reasonable apprehension of danger to such customer from the unlawful conduct of other customers or third persons, or if a personal injury from the misconduct of other customers or third persons could have been 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...