Bartosh v. Banning

• Decision Date: 26 May 1967
• Citation: 251 Cal.App.2d 378,59 Cal.Rptr. 382
• Court: California Court of Appeals Court of Appeals
• Parties: Francine BARTOSH, Plaintiff and Appellant, v. Thomas M. BANNING, Jr., Strebor Corp., doing business as Robert's Drive-in and the Intrepid Fox, Defendants and Respondents. Civ. 29476.

Page 382

59 Cal.Rptr. 382

251 Cal.App.2d 378

Francine BARTOSH, Plaintiff and Appellant, v. Thomas M. BANNING, Jr., Strebor Corp., doing business as Robert's Drive-in and the Intrepid Fox, Defendants and Respondents.

Civ. 29476.

Court of Appeal, Second District, Division 5, California.

May 26, 1967.

Hansen, Dillman & Werner, Donald E. Werner, Van Nuys, and Edward L. Lascher, Ventura, for plaintiff and appellant.

Chase, Rotchford, Downen & Drukker, and James J. McCarthy, Los Angeles, for defendant and respondent Strebor Corp.

Betts & Loomis and Royal M. Miller, Los Angeles, for defendant and respondent Thomas M. Banning, Jr.

FRAMPTON, Justice pro tem. ^*

Plaintiff filed her action wherein she sought damages for personal injuries claimed to have been sustained as the result of a hand to hand combat between the defendants Thomas M. Banning and Jerry Di Donato which occurred upon the premises owned and operated as a bar by the defendant Strebor Corporation and while the plaintiff was lawfully upon the premises as an invitee.

The cause was tried before a jury and at the conclusion of the plaintiff's case and on motion of the plaintiff the action was dismissed as to Di Donato; the motion of Strebor Corporation for judgment of nonsuit was granted and a written order of dismissal as to it was entered. Further evidence was taken and the cause was then submitted to the jury as to the defendant Banning only. The jury returned its verdict in favor of Banning and against the plaintiff and judgment was entered upon the verdict accordingly. The plaintiff appeals from the judgment of nonsuit and from the judgment entered upon the verdict.

The Facts

Plaintiff, a woman 45 years of age, was an organist-pianist by occupation, and had for approximately twenty years followed her profession by playing in cocktail lounges and dining rooms. She met Di Donato about 9:00 p.m. on October 4, 1961, at a cafe known as the Gilded Rafters where the plaintiff, with her mother and aunt, had dinner. Plaintiff had nothing of an alcoholic nature to drink while at the Gilded Rafters. Her escort, Di Donato, had two highballs while there. About 10:30 or 11:00 p.m. the plaintiff and Di Donato left the Gilded Rafters and went to the Intrepid Fox, a bar owned and operated by the defendant Strebor Corporation. They sat down upon stools at the bar and the bartender greeted Di Donato. The room used as a bar, adjacent to the restaurant, occupied a space approximately eighteen feet in width by twenty-five feet in length. There were stools arranged around the bar for the convenience of the customers and there were also booths or alcoves furnished with tables and chairs along one wall for the convenience of customers who did not wish to be served at the bar. There were also some tables and chairs situated in the floor area outside of the space occupied by the booths.

Plaintiff was seated to the right of Di Donato. She had never been to this bar before and went at Di Donato's suggestion. She had nothing of an alcoholic nature to drink while at the Intrepid Fox. Di Donato had one, possibly two highballs to drink before the defendant Banning arrived. There was a man seated at the bar next to the plaintiff on her right. Neither she nor Di Donato knew him. Di Donato and the man seated on plaintiff's right engaged in conversation about a certain celebrity being a conscientious objector, and about communism. Plaintiff took no part in this conversation. The bartender was at his position behind the bar. Di Donato and the stranger were just 'Friendly arguing.'

The defendant Banning came into the premises in about twenty minutes after the plaintiff and Di Donato had seated themselves at the bar and at a time when the latter and the stranger were discussing communism. Their discussion seemed loud for such a small place. Banning was staggering when he came through the door into the bar premises and went directly to a man whom he appeared to know, later identified as a Mr. Atkins, who was seated around the corner of the bar to the plaintiff's left. Banning was very angry about some woman, 'The woman wanted too much money or something.' Atkins was trying to calm him down. Banning immediately ordered and drank one drink, then ordered another. At this time the distance between where Mr. Banning was standing and where the plaintiff was seated was approximately six or seven feet. Banning stood for about two minutes talking to Mr. Atkins then he sat down. As Di Donato and the stranger continued to discuss communism and 'the way the Russians were doing things, and feeling each other out on their feelings toward this matter,' Banning yelled across the room, 'If you feel that way why don't you Jews go back where you came from.' Di Donato then said, 'Don't look at me, I am a Dago.' Banning said several more things about the Jews, that the Jews were the cause of all the trouble, and Di Donato said, 'I am still a Dago.' An interval of three to four minutes elapsed between the time the first remarks were made and the time of the last remarks.

Banning, holding his glasses in his hand, in spite of the fact that Atkins was telling him to sit down, then came around towards the side of the bar where the plaintiff and Di Donato were seated and struck Di Donato hard enough to knock him against the plaintiff and to knock the plaintiff backwards and a second blow by Banning, which came immediately after the first blow, struck the plaintiff on the shoulder. Di Donato was seated, 'possibly started to stand,' but 'He didn't have a chance, it happened too fast.' Di Donato's body went back against the plaintiff and knocked her off of the bar stool and caused her to strike the back of her head against a table. At this juncture the plaintiff was helped outside the bar by a patron where she remained for a few minutes then returned to her former position at the bar to have a cup of coffee. While the plaintiff was talking to a patron, Banning again came towards the bar with his hand extended as if to shake hands. Instead of shaking hands Banning again 'put his fist into Mr. Di Donato.' In this second altercation the plaintiff was pulled to one side by a patron and only 'went down slightly.'

The evidence most favorable to the plaintiff discloses that one Andrew Varela, employed by the Strebor Corporation as a bartender, was the only person on duty on the bar premises just before the altercation took place. At this time there was no telephone on the premises and if a message came by telephone which required the attention of Varela, it was necessary for him to leave the bar and answer the telephone located outside of the bar premises. Varela heard the conversation between Banning and Di Donato which led up to the first altercation. He was then called to the telephone by a fellow employee. He left the bar unattended for four or five minutes to answer the telephone. When he returned he found Banning and Di Donato wrestling on the floor. The plaintiff was off her stool and Varela then pulled Banning off of Di Donato. A telephone was subsequently installed in the bar premises.

The Contentions

Plaintiff contends that (1) under the state of the evidence it was error to grant the motion for judgment of nonsuit as to Strebor Corporation; (2) the court erred in instructing the jury on the issue of contributory negligence as there was no evidence upon which such an instruction could be based, and (3) the court erred in its instructions on the issue of criminal assault.

The Law

The uniform rule which an appellate court should follow in disposing of an appeal from a judgment of nonsuit is, that the court must view the evidence in the light most favorable to the appellant, must disregard all inconsistencies and draw only those inferences from the evidence which can reasonably be drawn which are favorable to the appellant. (Golceff v. Sugarman, 36 Cal.2d 152, 153, 222 P.2d 665.)

One who operates a bar where the public is invited must use reasonable care to protect his invitees against injury through the negligent or wrongful acts of other invitees on the premises where he has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm from the negligence of other persons who have entered the premises or even from intentional attacks on the part of such third persons. He is required to take action only when he has reason to believe, from what he has observed or from past experience that the conduct of the other will be dangerous to the visitor. (Winn v. Holmes, 143 Cal.App.2d 501, 504, 299 P.2d 994; Prosser on Torts, 3rd ed., Invitees, § 61, p. 405; 2 Rest., Torts, § 344.) The test of whether the duty of reasonable care is discharged is the probability or possibility of injury to the plaintiff. (Slawinski v. Mocettini, 217 Cal.App.2d 192, 197, 31 Cal.Rptr. 613.) Whether the person in charge of the premises, in the exercise of ordinary care, should have observed the conduct of the offender, realized that it was likely to result in injury to an invitee, and stopped it, are questions to be determined by the trier of fact. (Edwards v. Hollywood Canteen, 27 Cal.2d 802, 811, 167 P.2d 729; Slawinski v. Mocettini, supra, 217 Cal.App.2d 197, 31 Cal.Rptr. 613.)

The evidence, viewed in a light most favorable to the plaintiff, presents the picture of a man staggering into the premises under the control of the defendant Strebor Corporation; he was in such a state of anger and agitation that his companion tried to calm him down; he immediately ordered and was served a drink by the defendant's bartender; he immediately consumed this drink and ordered another; he then engaged in mouthing obnoxious and provocative...