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Action for damages. Fulton Superior Court. Before Judge Alverson.
PANNELL, Presiding Judge.
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 effect on the above rule; yet, where, as in the 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, nor 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, SC 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 remove 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: "Well, it would come out -- it come out maybe a little. A little would come out and then it would stop and then some more would come out and it would stop. The ice would stop coming out and a little more would come out and so . . ." 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.
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 waitress (he had been found washing dishes behind the counter by the manager) not to go behind the counter and that no one but employees were permitted behind the counter. This was no mere sign containing a rule or prohibition which the boy may or may not have read (Murray Biscuit Co. v. Hutto, 119 Ga. App. 377 (167 SE2d 182)) and when he, at the invitation of his cousin, Murphy, went behind the counter he did so knowing that this was in violation of express instructions from the manager, not only given to them but given to him. This is decidedly different from cases where one is injured not knowing the servant is violating instructions, as was the case in the example given in Summers v. Barron, 59 Ga. App. 202, 210 (200 SE 228). Further, an invitation to part of the premises as to a customer is not an invitation to all places. Piggly Wiggly, Macon v. Kelsey, 83 Ga. App. 526 (64 SE2d 201); Coffer v. Bradshaw, 46 Ga. App. 143, 149 (167 SE 119).
The only conclusion we can reach under these circumstances is that the injured boy, Burke, was nothing but a mere trespasser or volunteer to whom the duty owed was not to wilfully and to wantonly injure him, and this rule applies alike to adults and to children of tender years. Atlantic C. L. R. Co. v. O'Neal, 180 Ga. 153 (178 SE 451). See Early v. Houser & Houser, 28 Ga. App. 24 (2) (109 SE 914). There was no acceptance of the offered services by the defendant-master as was true in Mulligan v. Blackwood, 115 Ga. App. 618, 620 (155 SE2d 680); Harper v. DeFreitas, 117 Ga. App. 236 (2) (160 SE2d 260); Dean v. Gainesville Stone Co., 118 Ga. App. 142, 143 (2) (162 SE2d 858); Shepherd v. Whigham, 111 Ga. App. 274, 276 (1) (141 SE2d 583).
The act of the servants in securing the services of Burke in getting ice may have been in the prosecution of the master's business but it was nevertheless not in the scope of their employment. No employee has power to employ another to assist him in his work without express authority; and if he does so, he is acting without the scope of his authority. See Carter v. Bishop, 209 Ga. 919 (76 SE2d 784); Cowart v. Jordan, 75 Ga. App. 855 (44 SE2d 804); Waller v. Southern Ice &c. Co., 144 Ga. 695 (87 SE 888); Atlanta & W. P. R. Co. v. West, 121 Ga. 641 (4) (49 SE 711). In Crane Auto Parts v. Patterson, 90 Ga. App. 257, 261 (82 SE2d 666), relied on by the appellee, only a violation of instructions was involved, unknown to the injured party, and it was held: "The jury was authorized to conclude that the invitation to go on the lot as well as to ride in the truck was given in the prosecution and within the scope of the defendant's business." Before the master may be held liable for the negligent acts of the servant, the servants must have been acting both within the scope of their employment and in the prosecution of the master's business. Selman v. Wallace, 45 Ga. App. 688 (165 SE 851).
In the present case we may have the second element because the child, Burke, was getting ice for the master's business; but the first element is entirely lacking under the above decisions and the facts of the present case.
Should we assume that Burke, at the time he was injured, might by getting ice have had present business relations with the master, which might have rendered his presence of mutual aid to both (see Cook v. Southern R. Co., 53 Ga. App. 723, (187 SE 274); Higgins v. D. & F. Electric Co., 110 Ga. App. 790, 799 (140 SE2d 99); Findley v. Lipsitz, 106 Ga. App. 24, 26 (126 SE2d 299); Crane Auto Parts v. Patterson, 90 Ga. App. 257, supra) it appears here this particular business relation (helping behind the counter) was one which the owner and occupier of the premises had told him he was not to perform and in a place where he was told not to go. For these reasons the test above referred to is not applicable. While it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within range of a dangerous act being done or a hidden peril on one's premises (Cooper v. Anderson, 96 Ga. App. 800 (101 SE2d 770)), and it is usually wilful or wanton not to exercise ordinary care to prevent injuring a licensee or trespasser who is actually known to be, or reasonably expected to be within range of a dangerous act being done (Murray Biscuit Co. v. Hutto, 115 Ga. App. 870 (1) (156 SE2d 132)), such rule can hardly be applied where the owner and occupier of the premises (the master) had no such knowledge; and where the only persons having such knowledge were the servants of the owner who, contrary to instructions, and acting without the scope of their employment placed such person in the forbidden area to help them in their work. Where the servant or agent is acting in his own interest notice to the principal is not imputed. Union City Realty &c. Co. v. Wright, 145 Ga. 730, 731 (3) (89 SE 822); Harvard v. Davis, 145 Ga. 580 (4) (89 SE 740). Further, we think it can safely be said that the operation of the ice machine with the blades in the ice machine at the upper end of the chute which dropped the ice in a storage area, did not constitute a dangerous act being done or a hidden peril or mantrap. See in this connection, Crosby v. Savannah Electric &c. Co., 114 Ga. App. 193, 198-201 (150 SE2d 563).
In our opinion, Uris case is controlled by Atlanta & W. P. R. Co. v. West, 121 Ga. 641 (4), supra. We accordingly, reverse the trial judge for his failure to grant the judgment notwithstanding the verdict.
WEBB, Judge, concurring specially.
The majority place great reliance on the fact that Mr. York, the manager, specifically instructed Burke, in the presence of the other employees, to stay out of the counter area where he was not permitted to go. Upon this the case hangs, and upon this I have concluded the majority is quite correct.
Had there been some evidence of distraction, emergency, extreme urging, or perhaps even simple forgetfulness on the part of the ten-year-old plaintiff, I might conclude otherwise. But here there is no doubt that young Burke recognized that Mr. York was the manager and that he went behind the counter knowing that this was in violation of the manager's express instruction, not only given to the employees but to him as well. As Burke testified: "Q. Who is Mr. York? A. He is the manager . . . Now, you were told earlier in the day by your cousin, John Murphy, that you could not go behind the counter, did you not? A. I was not told by John Murphy. I was told by Mr. York. Q. You were told by Mr. York? A. Yes, sir. Q. And I believe you said that when you went back there, Mr. York's back was to you, is that right? A. Yes, sir . . . Q. Now, when you were back there, Mr. Ken York, the manager, told you that you couldn't go behind the counter back where the ice room was, is that right? A. Yes, sir . . . Q. Do you have any reason to believe that anything you might have said in 1972 (on deposition) was inaccurate as far as you knew at that time? A. Yes, sir. Q. You do? A. Yes, sir. Q. What particular portion of it? A. Johnny didn't tell me I wasn't supposed to come back there. Mr. York was the one that told me."
In view of this testimony, I see no basis upon which The Huddle House could be held liable.
I am authorized to state that Judge Quillian joins in the foregoing.
Cofer, Beauchamp & Hawes, Peyton S. Hawes, Jr., Robert S. Jones, for appellees.
Savell, Williams, Cox & Angel, Edward L. Savell, for appellant.
Friday May 22 11:58 EDT

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