Davis v. Lee, 1--872A48

• Decision Date: 08 February 1973
• Docket Number: No. 1--872A48,1--872A48
• Citation: 292 N.E.2d 263,155 Ind.App. 207
• Parties: Emma DAVIS, Plaintiff-Appellant, v. Charles W. LEE, Jr., and Charles W. Lee, Sr., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 263

292 N.E.2d 263

155 Ind.App. 207

Emma DAVIS, Plaintiff-Appellant, v. Charles W. LEE, Jr., and Charles W. Lee, Sr., Defendants-Appellees.

No. 1--872A48.

Court of Appeals of Indiana, First District.

Feb. 8, 1973.

Rehearing Denied March 7, 1973.

Ronald Warrum, Claude Bates, of Bates, Ewers & Noffsinger, Evansville, George Ankenbrand, Princeton, for appellants.

Jack N. Van Stone, of Rice & Van Stone, Evansville, Robert Fair, of Fair & Rehnquist, Princeton, for appellees.

ROBERTSON, Presiding Judge.

The plaintiff-appellant (Mrs. Davis) is appealing the granting of a new trial to the defendants appellees (Lee, Sr. and Lee, Jr.). Mrs. Davis had received a $40,000 verdict in a wrongful death action after a trial by jury.

Mrs. Davis' complaint was in two paragraphs, the first of which alleged that the decedent was an employee of the Lees, and the second of which alleged that he was an invitee. Both paragraphs charged the Lees with negligence: in failing to provide a safe place in which decedent could work; in placing an unlicensed firearm in a place where it was available to mischievous persons; and in failing to render medical aid to the decedent. The second paragraph of the complaint also alleged that the Lees negligently failed to protect the decedent from the acts of irresponsible, unsavory, and dangerous persons.

The facts of this case reveal that on March 22, 1968, and for some time prior thereto, Rankin Davis, the decedent, was employed as a dealer and stick man in an illegal gambling establishment located on the second floor above a tavern known as the 'Spot', in Evansville, Indiana. Both the tavern and the gambling establishment were owned and operated by Charles W. Lee, Jr., who was the employer of Rankin Davis. The extent of Charles Lee, Sr.'s ownership, if any, of the establishment is not established by the evidence.

At approximately ten o'clock on the evening of March 22, 1968, Davis was found on the floor of a doorway between the lounge and the office of the gambling establishment with a bullet wound in the right side of his head. Davis was taken by a fire emergency squad to a hospital where he was pronounced dead upon arrival. Lee, Jr. had been downstairs during this time and did not come upstairs until after Davis' body was discovered. Lee, Sr. was in Florida at this time. The revolver which inflicted the fatal wound was owned by Lee, Jr. who did not have a license for it. Lee, Jr. last saw the weapon that evening when it was in the pocket of his coat which was hanging on a coat rack in the upstairs office. The evidence was not conclusive as to whether Davis was engaged in his duties as an employee at the time in question.

The police investigation included a paraffin test on the hands of both Lee, Jr. and the decedent. The test revealed no nitrate on Lee, Jr.'s hands, and nitrate on the right hand of the defendant. An autopsy by a pathologist showed powder burns on Davis, but the undertaker testified that he did not see any powder burns. There was some evidence that Davis had been despondent and nervous shortly prior to his death. Davis was sixty-four years old at the time of his death. The police concluded after their investigation that Davis had committed suicide, but the county coroner did not think that suicide was probable. The evidence indicated that Davis, who was left-handed, had been shot in the right side of the head. There was also evidence that Davis had become proficient in the use of both hands while engaged in his employment as a dealer or stick man.

A witness testified that he had never seen any violence or anyone carrying weapons in the establishment. No testimony was offered as to any fights, carrying of weapons, or violence of any nature (other than one witness who testified that he had been asked to leave when he was too loud) in the establishment.

In her case in chief, Mrs. Davis called twenty-four witnesses, six of whom were hostile and often refused to answer questions relying on their Fifth Amendment privilege against self-incrimination. The Lees, on the other hand, called one witness, Charles Lee, Sr. who testified among other things that his son Charles Lee, Jr. was currently in a federal penitentiary, serving time on an interstate gambling charge. The Lees also introduced into evidence the decision of the Full Industrial Board of Indiana, rendered on July 11, 1969, which found that:

'Plaintiff's decedent's (Rankin Davis) death did not arise out of and in the course of his employment with the Defendant (Charles Lee Jr.) herein; and Plaintiff's decedent's death was due to causes wholly unrelated to his employment with the said Defendant.'

The Lees separately and jointly filed motions for a directed verdict at the close of all the evidence. This was granted in part and overruled in part. They then filed a motion to correct errors which the court granted. The pertinent parts of the ruling read:

'The Court further finds that the verdict of the jury is clearly erroneous as contrary to or not supported by the evidence, and now specifies the following general reasons therefor;

1. There is no substantial evidence that the Defendant, Charles W. Lee, Sr. had an opportunity to protect Rankin Davis from any act or acts of irresponsible, unsavory or dangerous person or persons on the premises.

2. There is no substantial evidence that the Defendant, Charles W. Lee, Jr. had an opportunity to protect Rankin Davis from any act or acts of irresponsible, unsavory or dangerous person or persons on the premises.

3. There is no substantial evidence that the Defendant, Charles W. Lee, Sr. had knowledge of any act or acts of irresponsible, unsavory or dangerous person or persons.

4. There is no substantial evidence that the Defendant, Charles W. Lee, Jr., had knowledge of any act or acts of irresponsible, unsavory or dangerous person or persons.

5. There is no substantial evidence that firearms available to irresponsible, unsavory or dangerous characters was the proximate cause of decedent's death.

6. There is no substantial evidence that the decedent died as a result of an act or acts of irresponsible, unsavory or dangerous persons.

7. There is no substantial evidence that the Defendant, Charles W. Lee, Sr., had any knowledge of any firearms on the premises available to irresponsible, unsavory or dangerous persons.

8. There is no substantial evidence that the Defendant, Charles W. Lee, Jr. had any knowledge of any firearms on the premises available to irresponsible, unsavory or dangerous persons.

9. There is no substantial evidence that anyone was present in the room with the decedent, Rankin Davis, at the time he was shot.

10. There is no substantial evidence that the Defendant, Charles W. Lee, Sr., negligently kept a firearm on the premises available to irresponsible, unsavory or dangerous persons.

11. There is no substantial evidence that the Defendant, Charles W. Lee, Jr., negligently kept a firearm on the premises available to irresponsible, unsavory or dangerous persons.

12. There is no substantial evidence that irresponsible, unsavory or dangerous characters on the premises was the proximate cause of decedent's death.

13. There is no substantial evidence that the failure to maintain order and discipline was the proximate cause of decedent's death.

14. The substantial evidence was that the decedent was a regular employee of the establishment and therefore assumed any risk incurred in working there.

15. The evidence was that the decedent was not an invitee of either of the defendants.

16. There was no substantial evidence that the Defendant, Charles W. Lee, Sr., carelessly and negligently placed an unlicensed firearm on the premises of the establishment in such a place where it was easily available to persons bent on mischief and that such firearm was used by such person in the shooting and killing of the decedent.

17. There was no substantial evidence that the Defendant, Charles W. Lee, Jr., carelessly and negligently placed an unlicensed firearm on the premises of the establishment in such a place where it was easily...