Industrial Park Businessmen's Club, Inc. v. Buck

Citation252 Ark. 513,479 S.W.2d 842
Decision Date08 May 1972
Docket NumberNo. 5--5863,5--5863
PartiesINDUSTRIAL PARK BUSINESSMEN'S CLUB, INC., et al., Appellants, v. William I. BUCK, Appellee.
CourtSupreme Court of Arkansas

J. H. Cottrell, Jr., Philip W. Ragsdale and Fred A. Newth, Jr., Little Rock, for appellants.

Patten, Brown & Leslie by Robert B. Leslie, Little Rock, for appellee.

FOGLEMAN, Justice.

Appellee William I. Buck recovered judgment against appellants for compensatory and punitive damages because of severe, permanent and disabling injuries attributable to a gunshot wound inflicted upon him at the Industrial Park Businessmen's Club in Little Rock during the early morning hours of November 18, 1969. Appellants urge only two points for reversal, i.e., failure to direct a verdict in their favor and to declare a mistrial when a witness was asked if she knew that Kenneth Shaw had served time in the penitentiary.

Appellants' argument on the first point is that appellee's testimony is so greatly contradicted by witnesses called by him and that there are so many contradictions in the testimony of all the witnesses called by him that the verdict was against the manifest weight of the evidence and the supporting evidence not substantial. Of course, we are not concerned with the preponderance of the evidence. Hubbard v. Graves, 240 Ark. 64, 398 S.W.2d 69. Although the testimony probably contains more inconsistencies and conflicts than are usually found in the versions of an altercation related by participants and eyewitnesses, due to the fact that all here appear to have been under the influence of intoxicating liquors to varying degrees, the resolution of these conflicts and inconsistencies was a matter for the jury. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735; Arkansas Power & Light Co. v. Kennedy, 189 Ark. 95, 70 S.W.2d 506. We cannot say that any of the testimony offered on Buck's behalf relates a version that was physically impossible or not reasonably probable or that reasonable minds could only reach a conclusion contrary to the verdict or that the versions given by these witnesses present theories so much in opposition that we can say that the jury was left only to speculation and conjecture to decide between two equally probable, but inconsistent, hypotheses as to the proximate cause of Buck's injuries.

In reviewing the evidence, it will, as required, be stated in the light most favorable to appellee and all doubts resolved and inferences drawn in his favor. Pearrow v. Huntsman, 248 Ark. 1146, 455 S.W.2d 128. The testimony will also be considered in the light of the instructions to the jury, about which no complaint is presently made.

The court instructed the jury that Buck would be entitled to recover damages for failure of Martin or Shaw or both to use ordinary care, or for acting negligently with a wilful or wanton disregard for the rights and safety of others or for an assault on Buck, if such conduct was a proximate cause of his injury. The court also advised the jury that Buck could recover from Barg and Industrial Park Businessmen's Club if he or it were guilty of negligence which was the proximate cause of the injury. Another instruction stated that it was the duty of the operator of a business to use ordinary care to protect his business invitees from injury resulting from the conduct of its agents or employees or other customers or third persons upon the premises under the circumstances, when such conduct could reasonably have been foreseen and could have been prevented by the use of ordinary care. The jury was also told that even though it found that Buck provoked the assault, the persons provoked had no right to exercise any greater degree of force than appeared reasonably necessary to them to repel an assault by him.

The place where Buck was wounded was being operated at the time under the name 'Industrial Businessmen's Club', a non-profit corporation, but it had been earlier known as the Black Hawk and the Four Seasons. The principal forms of recreation offered by it seem to have been pool and drinking intoxicating liquors. There is evidence that gambling on pool was regularly engaged in, with intermittent approval of the management.

Some facts are undisputed or virtually so. It is clear that Buck made himself obnoxious to everyone present, virtually from the time of his arrival shortly after midnight until he was shot at about 6:30 a.m. on November 18, 1969. He was snatching drinks from those who had been served at the club's bar and periodically falling over the table where Barg, Shaw, Jerry Carpenter, Mike Bale and perhaps others were playing poker. He was also snatching money, either from the pot or some of the players. In spite of his conduct and condition, it seems that he was served beer or whiskey almost whenever he wanted either, doubtless to the knowledge of everyone present.

Martin and Shaw deliberately armed themselves when they prepared to go to the club. Martin carried a newly acquired .32-caliber revolver, described by witnesses as silver or chrome. Shaw carried a .32-caliber Browning automatic, which was dark in color. It was supplied by a magazine or clip. On two different occasions these weapons were turned in to the bartender, but were in Martin's possession at the inception of the disturbance that led to the shooting of Buck.

At least until Barg arrived, the bartender Paul Christ was in charge of the club. After Barg's arrival, Christ turned the bar over to a waitress and did enough drinking himself to have been described by witnesses as drunk. Later he became so upset with the course of events, that he unceremoniously left the premises with the intention of leaving the city for a vacation. Christ said 7 or 8 people were still at the club when he left.

Barg had been convicted of a felony in Chicago and later of another in Arkansas. He could not recall what he had done in Chicago before he came to Arkansas. The premises were leased to Barg, who was at the time paying the owner $300 per month rent. He in turn leased the premises to the club along with the club's equipment for a rental of $1,500 to $1,800. Barg was unable to recall the amount of the rent, saying that he paid no attention and left the matter to his bookkeeper, who at the time was his wife. Barg's daughter and secretary were two of the three directors of the club. Mary Melody, the club's one-time bookkeeper who testified that she made income tax returns for the Bargs and did some bookkeeping for Mrs. Barg's supper club and for the Black Hawk Club, was the other director and the person in whose name the liquor permit was issued. Barg had a key to the club and came there frequently. He had also subleased the premises to the predecessors of this club.

On the morning Buck was shot, the waitresses were told by Christ to ask Barg if they could leave at the usual closing time, 2:00 a.m. When refused permission, they stayed for about two hours longer and then left without permission. Admission standards, ostensibly requiring membership in the club, were rather lax. Several of those present on this occasion were nonmembers. There is no evidence that anyone was turned away.

When Martin asked for the pistols the second time there was quite an argument between him and the bartender, and the bartender released them to Martin upon the specific direction of Barg. Martin left the premises immediately after an ambulance was called for Buck and took his pistol to the apartment of Barbara Winters, one of the waitresses at the club. He said that he took the pistol there because he was on Federal probation and did not want to be caught with a weapon. Barbara Winters' roommate unloaded the pistol which contained five cartridges and one empty casing. After the shooting Buck had powder burns on his chest and still had them on his neck at the time of trial.

Buck's version of the incident follows:

Buck left an establishment called the Red Carpet, where he had consumed some quantity of beer, at about 12:15 a.m. and went to the place the incident occurred, which seems to have been better known to him as the Black Hawk. He had no membership at the club but was admitted upon his statement that he must have hung some steel for Jack Barg. Buck was not actually acquainted with Barg. He was not drunk on arrival at the club. He went to a back room where he watched and participated in pool games and drank more beer. Sometime after he arrived a poker game, in which Kenneth Shaw, Mike Bale, Jack Barg and Jerry Carpenter were participants, commenced. Buck was not in the game, but at one time sat at the table to Carpenter's left. He and Carpenter were friends, and Carpenter owed Buck for loans. When Carpenter began to win, Buck reached out to get some of the winnings that Carpenter had put into the pot, in an attempt to recoup a part of Carpenter's debt to him. When this happened everyone in the game 'got on' Buck, who then left and went to get another beer.

He did get away with a $42 check of Kenneth Shaw's which Carpenter had won. He went back into the area where the poker game was going on about 4:00 or 5:00 a.m. As a result of something that took place at that time, Martin showed Buck the pistol Martin had and told Buck to straighten up. Buck then sat down first at the pool table, and then went to sit by Jerry Carpenter. Thereafter, a squabble started, and Buck undertook to get away from the table where the poker game was underway. Shaw moved around behind him; Barg got up from the poker table and moved toward him; and they all jumped Buck, got him down on the floor, struck him several times with one blow causing a cut over his eye. Buck did not recall having a gun and didn't believe that he was too drunk to know whether he had one. While Buck was being held on the floor. Martin was holding a gun on his neck and shoved it down and pulled the trigger. The resulting shot nearly burst Buck's eardrums, but he was not rendered unconscious. He asked ...

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