#### MRS. KATHERINE ELIZABETH SAMMONS v. STEVE FASUL, Trading and Doing Business as STEVE’S RESTAURANT, and AUSTIN S. GODWIN.

(Filed 14 December, 1938.)

1. Innkeepers § 4—

Complaint alleging unprovoked, lascivious assault by customer in restaurant on plaintiff waitress held not to state cause of action against defendant proprietor.

2. Assaults § 3—

Complaint alleging unprovoked, lascivious assault by customer in restaurant on plaintiff! waitress held to state cause of action against tbe customer.

Appeal by defendants from Sinh, J., at Regular October Term, 1938, of CumbeRlaND.

Reversed as to Steve Fasul; affirmed as to Austin S. G-odwin.

This is an action brought by plaintiff against defendants alleging that she was hired by Steve Fasul to serve as a waitress in defendant Steve Fasul’s restaurant, and he was negligent in not using due care to provide for her a safe place to work. That while working in the restaurant plaintiff alleges: “That on the night of July 3, 1938, while this plaintiff was engaged in her employment as aforesaid, she was called upon to serve a table whereat the defendant Austin S. Godwin and others were seated; that as she was serving said table in the regular course of 'her *577employment, tbe defendant Austin S. Godwin, wbo was in an intoxicated condition, in an insulting, lascivious and horrible manner asked this plaintiff, ‘Have you anything else good you wish to give away?’; that this plaintiff became highly insulted and offended by the improper remark of the defendant Austin S. Godwin but, nevertheless, she continued about her duties and ignored said remark, whereupon the defendant Austin S. Godwin repeated the remark and so that there should be no mistake in the insulting import of his words, he reached out and placed his hand upon the thigh or buttock of this plaintiff and pinched, or squeezed her in an insulting manner. That the act of the defendant Austin S. Godwin was an assault upon the person of this plaintiff, who is a respectable married woman living with her husband and five-year-old daughter. That when the defendant Austin S. Godwin insulted and assaulted this plaintiff as hereinbefore alleged, she became greatly embarrassed and mortified to such an extent that she lost control of her self-possession, and with an utter disregard of the consequences and without thought for her future employment with the defendant Steve Fasul, she then and there slapped the defendant Austin S. Godwin and left the vicinity of the booth occupied by said defendant.” Plaintiff alleged damage.

In the court below the defendants demurred to the complaint. The court below overruled the demurrer and defendants assigned error and appealed to the Supreme Court.

MacBae & MacBae for plaintiff.

H. G. Blaclcwell for defendants.

Per Curiam:.

As to Steve Fasul we think the demurrer should have been sustained. The facts alleged in the complaint as to him do not constitute a cause of action. As to Austin S. Godwin, the facts do constitute a cause of action.

Reversed as to Steve Fasul.

Affirmed as to Austin S. Godwin.