Baca v. Baca

• Decision Date: 10 July 1970
• Docket Number: No. 459,459
• Citation: 472 P.2d 997,81 N.M. 734,1970 NMCA 90
• Parties: Nemecio BACA, Administrator of the Estate of Eloy Baca, Deceased, Plaintiff-Appellee, v. Eloy BACA, Julio E. Lovato and Edward T. Sauer, d/b/a Liberty Bar, and Eloy Baca, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 997

472 P.2d 997

81 N.M. 734

Nemecio BACA, Administrator of the Estate of Eloy Baca Deceased, Plaintiff-Appellee, v. Eloy BACA, Julio E. Lovato and Edward T. Sauer, d/b/a Liberty Bar, and Eloy Baca Defendants-Appellants.

No. 459.

Court of Appeals of New Mexico.

July 10, 1970.

Lorenzo A. Chavez, Melvin L. Robins, Albuquerque, for appellee

Robert G. McCorkle, James C. Ritchie, Bruce Hall, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellants.

OPINION

OMAN, Judge.

Defendants appeal from a judgment entered pursuant to a jury verdict awarding plaintiff damages in the amount of $24,500.00. We affirm.

Plaintiff brought suit for the alleged wrongful death of decedent. The circumstances leading to the death, by viewing the evidence in its most favorable light in support of the verdict, (Williams v. Yellow Checker Cab Co., 77 N.M. 747, 427 P.2d 261 (1967); Cochran v. Gordon, 69 N.M. 346, 367 P.2d 526 (1961); Rein v. Dvoracek, 79 N.M. 410, 444 P.2d 595 (Ct.App. 1968)), were as follows:

(1) Defendants, as partners, own and operate the Liberty Bar in Albuquerque. On May 13, 1967, defendant Lovato, who worked the daytime shift, was relieved at about 6:30 p.m. by defendant Baca, who worked the nighttime shift.

(2) Rosendo Romero entered the bar as a patron at about noon, and from then until about 1:00 a.m. the following morning was consuming one drink of whiskey after another, and apparently also some beer, until he became so drunk he '* * * couldn't tell whether (he) was coming or going.' He was at first being served these drinks by defendant Lovato, although Lovato knew him to be a petty thief, a purse stealer, and, consequently, a person who might cause fights. He was later served drinks by two of defendants' waitresses or barmaids, and he became a 'drunk pest.'

(3) At about 12:30 a.m. or 1:00 a.m. on May 14, decedent entered the barroom, stopped at the bar to remark to defendant Baca that they had the same name, and talked briefly with Rosendo Romero. During this conversation with Romero, one of the barmaids observed Romero 'punching' decedent. She considered this 'horseplay' or 'fooling around.'

(4) Decedent and Romero both went to the men's restroom at the rear of the barroom. In about five minutes someone called that there was a disturbance in the restroom, and defendant Baca investigated. He found Romero and decedent engaged in a 'scuffle,' or, as he also described it, a 'shaking' or a 'manhandling' of decedent by Romero. Decedent was offering no resistance. Defendant Baca '* * * told them to break it up and get out.'

(5) Defendant Baca then left the restroom and returned to his position behind the bar. Decedent and Romero followed him from the restroom. Romero was preceding decedent toward the exit, when he turned around and struck decedent, knocking him to the floor.

(6) Decedent was unconscious for a few seconds, but revived shortly after defendant Baca used a wet towel to wipe blood from his face and head. At one time Baca stated '* * * it looked like he was bleeding from the right ear.' He testified at the trial that he did not notice exactly where the blood was coming from, except it was in the area of the ear.

(7) Defendant Baca ordered a barmaid to call the police. Policemen arrived shortly and talked with decedent for a period of about 10 to 20 minutes. Decedent told the police he wanted to be left alone. During this time another disturbance occurred involving a Mr. Barela. The police, in the confusion, thought Barela had struck decedent, and proceeded to arrest and escort him to the police car. About the time they arrived at the police car, decedent 'passed out,' and defendant Baca went outside and requested the police to take decedent along to jail because he was drunk. The police returned to the barroom, saw decedent was unable to care for himself, and assumed his condition was due to drunkenness. He was unable to walk, so was assisted by two policemen.

(8) Prior to the scuffle in the restroom, decedent was able to walk "straight,' and did not appear to be intoxicated. He had nothing to drink in defendants' bar. After he had been struck and knocked down by Romero, defendant Baca noticed a change in his condition. He then appeared to be 'more drunk or dazed.' The only thing known to defendant Baca which could have caused this change was the blow by Romero and the consequent fall of decedent to the floor.

(9) Defendant Baca never said anything to the police about seeing blood coming from or in the area of decedent's ear, but told them decedent was drunk and asked them to take him along to jail.

(10) Decedent was observed by the jailer on two occasions during the morning hours of May 14 and he appeared to be sleeping. At about 10:00 a.m. the jailer observed mucus coming from decedent's nose and observed that decedent was having difficulty breathing. An ambulance was called and he was admitted to a hospital at about 11:00 a.m. He underwent brain surgery, but died two days later. The cause of death was the leakage of blood from a subdural hematoma into the brain stem.

(11) There were differences in the opinions of the medical experts as to when and how rapidly the damage to the brain stem developed, and what the chances of saving decedent's life would have been had he been given early medical attention and an operation performed to remove the subdural hematoma. The one doctor testified he had operated on several hundred patients suffering from subdural hematomas, and that 90% of these operations had been successful. It was his opinion, as already stated above, that the brain stem damage resulted from a leakage of blood into the brain stem from the hematoma.

Defendants first contend there is an absence of evidence from which the jury could have found defendnat Baca knew or should have known decedent was likely to be struck by Romero, there is nothing this defendant could have done to prevent this assault on decedent by Romero, and the trial court should have directed a verdict for defendants.

Defendant Lovato at least knew Romero to be a petty thief and purse stealer and a person who might cause trouble. Nevertheless, he and the barmaids served this person whiskey and beer over a period of about thirteen hours, during which time he became a drunken pest and so intoxicated that he recalls very little of what occurred and did not know whether he was coming or going.

It is true there is no evidence of any prior tendency on the part of Romero to become violent when intoxicated, but one of the waitresses saw him punch decedent shortly after decedent entered the bar. This may or may not have been 'horseplay,' as she sought to characterize it at the trial. Defendant Baca personally investigated the incident in the restroom and observed Romero 'scuffling' with or 'shaking' or 'manhandling' decedent, who was offering no resistance. This defendant ordered them to break it up and get out, and then proceeded ahead of them from the restroom and returned to his position behind the bar. He was an experienced bar operator, accustomed to troubles incited by persons under the influence of liquor, and knew that some people become emotional, uninhibited and violent when under the influence of intoxicants.

Under these circumstances, and viewing the evidence in its most favorable light in favor of plaintiff and in support of the verdict, we are of the opinion that the evidence is sufficient to support a finding that defendants failed in their duty to exercise reasonable care to protect decedent against injuries from the conduct of Romero. As stated in Coca v. Arceo, 71 N.M. 186, 376 P.2d 970 (1962), in quoting from Peck v. Gerber, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996 (1936):

"A guest or patron of such an establishment has a right to rely on the belief that he is in an orderly house and that the operator, personally or by his delegated representative, is exercising reasonable care to the end that the doings in the house shall be orderly."

The court further stated in the Coca case:

'* * * The rule does not require a long and continued course of conduct to find that the proprietor had knowledge of the violent disposition of the other patron--all that is necessary is that there be a sequence of conduct sufficiently long to enable the proprietor to act for the patron's safety. It is not necessary that the proprietor know of a history of a series of offenses against the peace. * * *'

Even disregarding the prior known proclivities of Romero to be a petty thief, a purse stealer and, consequently a potential troublemaker, defendants knew he was behaving violently towards decedent when defendant Baca personally observed him 'shaking,' 'manhandling,' or 'scuffling' with decedent in the restroom. Under all the circumstances, we are unable to say, as a matter of law, that the course pursued by defendant Baca fell within the realm of reasonable care and constituted that degree of reasonable protection to which decedent was entitled from defendants. In addition to Coca v. Arceo, supra, see De Hart v. Travelers Ins. Co., 10 So.2d 597 (La.App. 1942); Garey v. New Yorker of Worcester, Inc., 245 N.E.2d 420 (Mass. 1969); Greco v. Sumner Tavern, Inc., 333 Mass. 144, 128 N.E.2d 788 (1955); Reilly v. 180 Club,14 N.J.Super. 420, 82 A.2d 210 (App.Div. 1951); Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928).

Defendants rely upon Moore v. Yearwood, 24 Ill.App.2d 248, 164 N.E.2d 215 (1960); Huddleston v. Clark, 186 Kan. 209, 349 P.2d 888 (1960); Swanson v. Dugout, Inc., 256 Minn. 371, 98 N.W.2d 213 (1959); Romero v. Kendricks, 74 N.M. 24, 390 P.2d 269 (1964); Kingen v. Weyant, 148 Cal.App.2d 656, 307 P.2d 369 (1957); Schwartz v. Cohen, 204 Misc. 142, 119 N.Y.S.2d 124 (Sup.Ct. 1953). None of these cases require a position under the facts of this case different from that taken by us.

Defendants' contention under their second point is that there is no evidence in the record to establish defendant Baca...