Gorby v. Yeomans, 962
| Decision Date | 27 September 1966 |
| Docket Number | No. 3,No. 962,962,3 |
| Parties | Olon GORBY, Plaintiff-Appellee, v. Albert YEOMANS, d/b/a Riverview Resort, and Jay Willis, Defendants-Appellants. Cal |
| Court | Court of Appeal of Michigan — District of US |
Leonard A. Baun, Okrent, Baun & Stalburg, Detroit, for appellants.
J. Donald Murphy, Fremont, for appellee.
Before HOLBROOK, P.J., and FITZGERALD and GILLIS, JJ.
Defendant, Albert Yeomans, doing business as Riverview Resort, appeals a judgment entered on a jury verdict for plaintiff, Olon Gorby, and a denial of defendant's motion for a judgment notwithstanding the verdict and motion for a new trial. Plaintiff brought his action against one Jay Willis and Yeomans, asserting that they were jointly and severally liable for injuries, which he sustained in an altercation in a tavern operated by defendant Yeomans on June 25, 1963. Defendant Willis who allegedly assaulted the plaintiff defaulted, and although he appeared as a witness at trial, did not contest the action and is therefore not involved in this appeal.
Plaintiff's theory, under which he sought to hold Yeomans liable for injuries allegedly inflicted by Willis, was that Yeomans failed on his common-law duty to plaintiff-business invitee to provide a reasonably safe place for the plaintiff which included both using all reasonable means to protect plaintiff from an assault by another patron of the tavern, and also to prevent the continuation of the assault once it had been initiated.
The setting for the action presently before this Court was a tavern in a resort area near the township of Croton, Newaygo county, Michigan. The leads in the case included 3 of 4 men who had spent the evening playing pool and drinking together and the barmaid in the Riverview Tavern where the convivial evening terminated in an assault and battery. Plaintiff testified that he knew one of the 3 men--Robert Baker--however, his other 2 companions for the evening were strangers to him. Gorby was unaware of the fact that his alleged assailant, Willis, was at that time 'going with' Baker's daughter (subsequently Willis became Baker's son-in-law). The fight resulted from an argument regarding the payment of drinks for the evening which, according to plaintiff, was initiated when Baker accused plaintiff of allowing a younger man (Willis) to foot the evening's bills. At some point in the verbal battle, Willis was alleged to have taken over for his future father-in-law and assaulted plaintiff, causing considerable injuries for which he sought damages. At the time of the assault, a Wednesday evening at approximately 11 o'clock, the tavern was peopled with a handful of patrons. It was staffed only by a female attendant at the bar. The dispute and its physical aftermath took a minimum of 5 minutes. Although the testimony as to exactly how long it took for the injuries to be inflicted, and the testimony as to exactly who did what was necessarily in conflict, it was undisputed that defendant Yeomans' employee did nothing to attempt to quell the disturbance, to urge the principals to cease their activities, or to call for aib--either from the police or other patrons.
The jury returned a verdict of $7,500 for plaintiff against defendants Willis and Yeomans and the latter appeals. Although defendant raises some 12 issues on appeal, they can be consolidated into the essential question of whether plaintiff presented sufficient evidence of a breach of duty owed to him which was a proximate cause of his injuries to allow this case to go to the jury.
Yeomans argued that he, through his employee, could not have been expected in the exercise of reasonable care to anticipate or prevent the assault since the plaintiff, himself, testified he was surprised by the attack. The defense of contributory negligence was raised for the first time on appeal and will therefore not be considered.
In order to resolve the essential issue on appeal, this...
To continue reading
Request your trial
-
Mason v. Royal Dequindre, Inc.
...in responding to the disturbance, it cannot be said that the verdict of the jury was not supported by the evidence. Gorby v. Yeomans, 4 Mich.App. 339, 144 N.W.2d 837 (1966). This case is an inappropriate vehicle for consideration of whether, and to what extent, a merchant has a general duty......
-
Manuel v. Weitzman
...reversed. (23 Mich.App. 96, 178 N.W.2d 121). We granted defendant leave to appeal. 384 Mich. 763. Plaintiffs rely on Gorby v. Yeomans (1966), 4 Mich.App. 339, 144 N.W.2d 837, which held that bar owners are liable under the common law if they breach their duty to maintain safe premises; and ......
-
Honorl v. J. L. Hudson Co.
...Mears v. Kelley (1938), 59 Ohio App. 159, 17 N.E.2d 386; Quinn v. Smith Co. (C.A.5, 1932), 57 F.2d 784. Compare Gorby v. Yeomans (1966), 4 Mich.App. App. 339, 144 N.W.2d 837 (failure of bar owner to aid customer in a brewing altercation which ultimately fulminated).9 McKinney v. Yelavich (1......
-
Warner v. Florida Jai Alai, Inc., 38722
...where a bar was left in control of a woman unable or unwilling to prevent an assault by one patron on another; Gorby v. Yeomans, 4 Mich.App. 339, 144 N.W.2d 837 (1966), which affirmed a jury verdict on similar facts; and Bartosh v. Banning, 251 Cal.App.2d 378, 59 Cal.Rptr. 382 (1967), in wh......