Huddle House, Inc. v. Burke
| Citation | 133 Ga.App. 643,211 S.E.2d 903 |
| Decision Date | 20 December 1974 |
| Docket Number | 2,3,No. 49521,Nos. 1,49521,s. 1 |
| Parties | HUDDLE HOUSE, INC. v. Donald G. BURKE et al |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
1. Where a servant disobeys instructions of his master, the fact of disobedience alone does not insulate the master from liability for the servant's negligence. The master is responsible for the servant's negligence under the doctrine of respondeat superior if the servant is acting within the scope of his employment and in the prosecution of the master's business. And where a servant, acting within the scope of his employment enlists the services of a third person to perform an act on the master's premises which is normally performed by the servant as an incident of his employment and which is beneficial and of direct interest to the master as well as to the third person, the third person is not a mere trespasser, intermeddler, or volunteer, but is an invitee to whom is owed the duty of ordinary care; the fact that in doing so, the servant permitted the third person to work in an area against the rules of the employer would have no affect on the above rule; yet, where, as in then present case, the servant, without authority from the employer enlisted the aid of another (an invitee or licensee on the part of the premises) to aid him in his work for the master and in an area where the master has by rule prohibited the presence of others than regular employees of the master, and where immediately prior thereto the master, in the presence of the servants of the master, specially instructed the other person relative to the rule and instructed the other person to stay out of that area (he having been in that area just prior thereto helping the servants in other work) and such person subsequently goes into that area he is a trespasser and a volunteer as to the master and owner or occupier of the premises, although he goes at the invitation of such servants; and the servants in so employing the other person to aid them in their work without express authority from the master are acting without the scope of their authority and the master is not liable for injuries to the helper received in doing such work under the doctrine of respondeat superior, not under the doctrine of liability of the owner and occupier of the premises under Code § 105-401; but is only liable for wilful and wanton injuries afflicted upon the trespasser and volunteer after his presence is known or should have been anticipated.
2. Where, as in the present case, the master and owner and occupier of the premises had no notice of the presence of the trespasser, or volunteer, and there was no wilful and wanton act of the master and owner or occupier of the premises and the condition of the premises causing the injury was not a man-trap, there is no liability on the part of the master and owner and occupier of the premises.
3. The trial judge erred in overruling the motion for judgment notwithstanding the verdict of the master and owner and occupier of the premises.
John Burke and his father brought suit against The Huddle House, Inc., for personal injuries sustained by the ten-year-old boy and for the medical expenses incurred by his father. At the time of the occurrence complained of young Burke was visiting his cousin, John Murphy, in Atlanta. Murphy was fourteen years old at the time and had a summer job as a dishwasher at the Huddle House where the injury occurred.
The Huddle House is a short-order eating establishment which is divided into two areas by a counter. The area outside the counter is for the general public. The area inside the counter is for employees only, as evidenced by a sign which reads: 'No one allowed behind counter except employees.' In one of the rooms behind the counter there is located an ice-making machine, denominated a 'Ross-Temp, S C Ice Flaker,' upon which Burke was injured. The machine is equipped with an auger or cutting blade which cuts or flakes the ice, and the ice in turn exits through a small chute into the storage area of the machine.
At approximately 7:00 a.m. on the day of the injury, Burke accompanied his cousin Murphy to the Huddle House, where they ate breakfast paid for by Murphy. The two boys had planned to go to the movies together after Murphy got off work, and during the morning Burke wandered in and out of the eating establishment and around the shopping center, looking in windows, getting aspirin for waitresses, etc., waiting for Murphy to get off.
At some point during the day, Burke volunteered to help Murphy wash dishes. However, it was the defendant company's policy that no one was to be allowed behind the counter except employees, who were instructed to this effect, and none of the employees had the right to waive this rule. Accordingly, the manager informed both the boys that no one could come behind the counter who was not working there, and there was also evidence that Murphy told Burke he could not come back of the counter to help with the dishes.
Nevertheless, while Burke was sitting at the counter at approximately 1:30 in the afternoon, just before Murphy was to get off work, a waitress asked Murphy to get some ice out of the ice machine to fill the ice bin out front by the counter so that the employees could serve ice to the customers. Procuring the ice in this manner was a job which the waitress and Murphy normally shared. The waitress was too busy from the luncheon rush to get the ice herself, resulting in her request that Murphy get it. Murphy was likewise busy from the rush and wanted to finish washing the dishes so that he could get off to go to the movies with Burke. Consequently, the waitress and Murphy requested Burke to get the ice, and the waitress told Murphy to show him how to do it. After Murphy showed him how to revove the ice with the scoop and fill the transporting trays, he left and returned to the counter. He was aware of the danger inherent in the 'razor-blades' in the ice chute if one should slide his hand up the chute rather than getting ice out of the storage area below the chute, but neither he nor the waitress warned Burke of this danger.
Burke began scooping the ice from the storage area of the machine and filled two trays. However, as he was scooping to fill the third tray, the crushed ice ran out and he was unable to fill the tray from the storage area. According to Burke, ice was falling from the chute in the following manner: Being unaware of the presence and danger of the cutting blades in the chute, Burke began using his fingers in an attempt to get ice to come out of the chute so he could complete filling the tray. As a result, the tip of his finger was cut off by the blades.
The jury returned a verdict in favor of Burke and his father jointly. Huddle House appeals, enumerating error on the overruling of its motions for directed verdict and for judgment n.o.v.
Savell, Williams, Cox & Angel, Edward L. Savell, Atlanta, for appellant.
Cofer, Beauchamp & Hawes, Peyton S. Hawes, Jr., Robert S. Jones, Atlanta, for appellees.
The case as decided by the trial judge is, in our opinion, dependent entirely on the following erroneous concepts: (1) That the ten year old child, Burke, was an invitee in the place where he was injured behind the counter; (2) that employing him to get ice and thus assist his cousin, Murphy, and the waitress in the performance of their duties behind the counter, was a mere violation of instructions on the part of the cousin and the waitress, but was within the scope of their employment because both Murphy and the waitress shared the duties of getting ice as a part of their employment.
In our opinion, the uncontradicted evidence, when applied to the law as decided by this court and the Supreme Court of this State, demand a finding to the contrary of these premises.
The injured boy, Burke, had been told by the manager of the defendant and in the presence of both Murphy and the...
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...Generally, the duty owed to a volunteer is not to wilfully or wantonly injure him after his presence is known. Huddle House v. Burke, 133 Ga.App. 643, 647, 211 S.E.2d 903 (1974). But, under the facts of this case, the evidence raises the issue of wilful and wanton conduct or gross negligenc......
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...468, 486, 14 L.Ed. 502 (1852); Crane Auto Parts, etc., Inc. v. Patterson, 90 Ga.App. 257, 260, 82 S.E.2d 666; Huddle House, Inc. v. Burke, 133 Ga.App. 643(1), 211 S.E.2d 903, cert. denied. In the instant case the defendants' employees were acting within the scope of their employment and in ......
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