Anderson v. Clements

• Decision Date: 07 August 1973
• Docket Number: No. 5584,5584
• Citation: 284 So.2d 341
• Parties: Henry C. ANDERSON v. Henry CLEMENTS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 341

284 So.2d 341

Henry C. ANDERSON v. Henry CLEMENTS et al.

No. 5584.

Court of Appeal of Louisiana, Fourth Circuit.

Aug. 7, 1973.

Rehearing Denied Nov. 2, 1973.

David E. Caruso, Jr. and Frederick J. Gisevius, Jr., New Orleans, for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James R. Murrell, III, and John J. Weigel, New Orleans, for defendants-appellees.

Before SAMUEL, BAILES and FLEMING, JJ.

SAMUEL, Judge.

This is a suit to recover damages for personal injuries sustained when plaintiff was struck by a bullet while he was a patron of a poolroom. Named as defendants are: Major Lanes, Inc., owner of the combination poolroom-bowling alley; Travelers Insurance Company, liability insurer of Major Lanes; and Henry Clements, the employee of Major Lanes who fired the shot which struck the plaintiff. ¹

After trial on the merits, judgment was rendered in favor of Major Lanes and Travelers, dismissing the suit as to those two defendants. Although Clements did appear as a witness, he had not been served and no judgment was rendered with regard to him. Plaintiff has appealed.

Plaintiff's injury occurred on October 5, 1966, at about 5:30 p.m. or shortly thereafter. Clements was employed by Major Lanes as a racker in the poolroom. His chief function was to rack the balls after each game and collect a fee which amounted to five cents per person per game. His compensation was 25% Of all amounts collected by him.

On the evening in question he came to work shortly after 5 p.m. At that time plaintiff was engaged in a pool game with Simon Washington, whom plaintiff had not known previously. After the game was over Clements inquired as to the winner and asked Washington, who had lost, to pay the ten cents fee for the pool table. Washington refused to pay and Clements then requested Oliver White, the day manager of the establishment, to assist him in collecting the money. White talked to Washington alone and gave him the ten cents to pay Clements. When Washington returned to the pool table Clements refused to accept the money and refused to allow Washington to continue playing. Some words were exchanged between the two men and Washington left the premises.

After being told by a customer that Washington was coming back to 'cause trouble', Clements went to a room available to the employees, there obtained a .25 caliber automatic (owned by another employee), and placed the gun in his belt under his shirt. He then proceeded to carry on with his job. Washington returned to the premises before 6 p.m.

All of the testimony clearly establishes that Washington returned to the premises with a butcher knife or meat cleaver held behind his back. He approached Clements who pointed the gun at him and warned him not to come any closer. When Washington brandished the knife over his head and continued to advance in an obvious attempt to harm Clements, Clements shot Washington three times in the chest, killing him. One of the shots struck the plaintiff in the gential organs and caused him to fall to the floor.

It is undisputed that when Clements was informed Washington was coming back to the poolroom to 'cause trouble', he neither told plaintiff or the other patrons then in the room that trouble was imminent or possible, nor did he call the police. Instead his only action was to arm himself by concealing the gun.

Oliver White was employed by Major Lanes as a day manager. His hours were from 7 a.m. to 5 p.m. He had left the premises prior to the shooting incident. Part of his duties included keeping order on the premises. He had been instructed to call the police in the event of a disturbance, since the security guards hired by Major Lanes did not come on duty until 6 p.m. He testified that between 5 p.m., when he left duty, and 6 p.m., when the security guards came on duty, Clements was in charge of the poolroom and a Theodore Smith was in charge of the bowling alley which was also part of Major Lanes' operation. Smith was regarded as the night manager. Both he and White confirmed the fact that Smith had no control over the poolroom, and that whatever racker was working there was in charge of that operation.

The testimony of John Hooper, the owner of Major Lanes, is significant because he confirmed that fact that if White left the premises it was understood Clements would be in charge of the poolroom. He stated he instructed White to delegate the duties, and it was expected that Clements would have handled disturbances at a time when White was not on the premises. He did state, in the event of trouble, he had instructed Clements to call White or the police during the day or a security guard on the premises at night. He emphasized that he had forbidden the use of firearms by his employees, he had no knowledge of the firearm used by Clements in this matter, and he had told his employees to use billiard sticks as weapons should an altercation occur.

As stated in his reasons for judgment the trial court found the following facts: Clements was not at fault in the argument with Washington; the gun which Clements obtained was owned and placed on the premises by one of his co-employees; the defendant company had a policy against possession of firearms by any employees; the defendant company had no knowledge that any gun was kept on the premises; there was no security guard on the premises at the time of the shooting, the day security guards previously having been discontinued for financial reasons; Clements did not call the police before the shooting, and Clements gave no warning to the plaintiff or to any other person that he was armed. We agree with these findings of fact. We also agree that, other than such as may be attributable to Clements, the record shows no negligence on the part of the defendant company.

However, we are of the opinion the legal conclusion which the trial court drew from these findings of fact is in error. If Clements was guilty of negligence proximately causing the injury in suit, and if his negligence took place in the course and scope of his employment, his employer and its insurer are liable for his actions under the doctrine of respondeat superior.

The basic duty owed to a patron by an establishment such as that of the defendant was set forth in De Hart v. Travelers Insurance Company, ² which involved an assault upon a patron by another patron while the owner of the coffee house in which the assault took place was absent from the premises. There the court stated that while the proprietor of a public place is not the guarantor of his patrons' safety, he owes them a duty to exercise reasonable care to protect them from harm at the hands of a fellow-guest or at the hands of his employees; such a proprietor owes a duty to guests to protect them from insult, annoyance and danger, and his guests have a right to rely on the belief they are in an orderly house and are protected from injury by the exercise of reasonable care for their safety by the operator of the establishment or his representative.

Under our law part of the duty imposed on those in charge of a business establishment if time allows, is to call the police in the event of a disturbance in order to prevent injury to patrons. In Matranga v. Travelers Insurance Company, ³ wherein liability was imposed on the owner of a barroom, the court made the following statement:

'It is the duty of every storekeeper and restaurant operator to use reasonable care in the protection of his patrons and guests. Particularly, must he, himself, refrain from any act or conduct likely to cause injury to a guest. Had the argument been between two other guests rather than between the proprietor and his brother, who had been assisting him in the restaurant at the time, it would have been defendant, Zibilich's duty to eject the offenders or Called (sic) For the police. Under the circumstances, defendant, Zibilich's conduct constituted negligence.' (Emphasis ours).

The duty to call the police if time allows was recognized in Rodney v. Mansur, ⁴ where the court stated the person in charge of an establishment, such as the one in this suit, has the duty to call the police in the face of danger in order to protect patrons of the establishment and that failure to comply with this duty would impose liability. However, the court refused to apply the principle for the reason that the person in charge of the business did not delay a sufficient amount of time in calling the police to justify imposing liability.

In the instant case, in spite of the warning he had received, a warning obviously taken seriously as shown by his action in arming himself, Clements did not call the police nor did ...