Fisher v. Robbins

• Decision Date: 10 December 1957
• Docket Number: No. 2769,2769
• Citation: 319 P.2d 116,78 Wyo. 50
• Parties: William E. FISHER, Plaintiff and Respondent, v. Don ROBBINS, Jack Brow, Gene Brow, Defendants, and Max Squires, d/b/a Saddle Rock Bar, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 116

319 P.2d 116

78 Wyo. 50

William E. FISHER, Plaintiff and Respondent, v. Don ROBBINS, Jack Brow, Gene Brow, Defendants, and Max Squires, d/b/a Saddle Rock Bar, Defendant and Appellant.

No. 2769.

Supreme Court of Wyoming.

Dec. 10, 1957.

T. C. Daniels, Casper, and Joseph Garst, Douglas, for appellant.

Murane & Bostwick and R. R. Bostwick, Casper, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice HARNSBERGER delivered the opinion of this court.

Plaintiff brought suit against the defendants, asking damages for injury received while he was present as a business invitee in a barroom. In a first cause of action, plaintiff alleged that while he was in the Saddle Rock Bar an argument occurred between defendants Don Robbins, Jack Brow and Gene Brow, which continued longer than fifteen to twenty minutes and culminated when Robbins broke a glass beer bottle over the head of either Jack or Gene Brow, and a particle of broken glass lodged in plaintiff's eye, which required the removal of the eye. Plaintiff claimed these actions of Robbins and the Brows were negligent and rendered them answerable in damages for the injury plaintiff suffered.

A second and separate cause of action against defendant Max Squires, doing business as the Saddle Rock Bar, alleged Squires to be the owner and operator of the bar, and that he was tending bar at the time of the occurrences recounted in the first cause; that Squires either knew or should have known that the argument or altercation was taking place, but that he failed and neglected to do anything to stop the argument, or remove the participants or protect the plaintiff from the ensuing violence, and that this failure was negligence which rendered Squires answerable in damages for the injury plaintiff received. No service was had upon defendant Robbins. Issue was joined by all the other defendants, and the case was tried to a jury. Before the matter was submitted to the jury, Gene Brow's motion for a directed verdict as to him was granted, and, at the close of the evidence, on motion of plaintiff, the action against Jack Brow was dismissed. The defendant Squires had also moved for a directed verdict at the close of plaintiff's case, but the motion was denied, and Squires again moved for a directed verdict at the close of all of the evidence. This motion was likewise denied, and the jury rendered a verdict in favor of the plaintiff and against the defendant Squires, awarding him the sum of $6,000 and costs of $60.80. Squires then moved for judgment notwithstanding the verdict, and this, too, was denied. From the adverse judgment entered upon the verdict, the defendant Squires has appealed, alleging the court erred: (1) in overruling his motion for directed verdict made at the close of all of the evidence; (2) in overruling his motion for judgment notwithstanding the verdict; and (3) in entering judgment upon the verdict.

In considering these alleged errors, it is the duty of this court to assume that the evidence of the successful party is true, leaving out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. This has been the unvarying rule of this court and has been followed more than thirty-five times. It needs no citation of authority to justify it. However, in applying that rule in a case of this nature, it must be kept in mind that in order to recover from the appealing defendant, the burden was upon plaintiff to prove: (1) a disturbance occurred which either did or should have attracted defendant's attention; (2) defendant had opportunity to act; (3) defendant permitted the disturbance to continue without reasonable effort to quell the same; (4) defendant failed to give plaintiff reasonable protection; (5) there was some relationship between the disturbance and the subsequent violence; and (6) plaintiff was injured as a result of the violence.

It was not enough merely to prove there was a disturbance and that plaintiff was injured. Proof of defendant's actual or implied knowledge of impending danger to his invitees and that he had reasonable opportunity to avert it was indispensable to entitle plaintiff to a recovery. It was also necessary to show a relationship between the particular disturbance which was relied upon as warning defendant of the impendance of danger to his invitees and the subsequent violence which caused plaintiff's injury.

Our examination of the record discloses that the only evidence of there being any disturbance, prior to the occurrences which took place substantially coincidental with the breaking of the bottle, came solely from plaintiff's own testimony. This testimony is somewhat general and ambiguous and leaves much to surmise in order to connect it with plaintiff's account of the incident which caused the injury.

In order to emphasize the nature of this portion of plaintiff's evidence, it is completely abstracted as follows: The plaintiff said he heard two people in back of him, arguing, talking rather loud, angry and hostile; he noticed but did not recognize them when he glanced around; their tones were angry; they came over like they were going out the entrance door; he could not say what they said; there was no physical movement between them and no pushing or shoving; they seemed to argue loud for a while and then they didn't; one called the other a name in a voice louder than used in argument; one of them hit another with a bottle while they were six or eight feet from him and a piece of it hit plaintiff in the eye; he had never seen the persons involved in this altercation before; the barroom was full at the time; a police officer who was there tried to interfere just before the bottle was thrown; there were just two men talking with the officer; and the officer was taking action to stop the argument by talking to them.

On cross-examination, plaintiff said he did not see either Jack or Gene Brow that night, but remembered seeing the officer and seeing him talk to the two fellows who were arguing; he did not see the man wield the bottle or know who wielded the bottle; the only word heard was the 'cuss' word before the glass broke; he couldn't say that prior to the time he heard the glass break there was any indication of an active scuffle; he thought the argument should have been stopped and the proprietor should have recognized it as dangerous; he would be running all the time if he ran every time he heard two people arguing; he heard the argument but remained where he was; they were going toward the door; the persons at the doorway were the same as those he first heard; the officer came in and was talking with them four or five minutes before the bottle was broken; the loud talking was before the officer came in; the only word heard after the officer came in was the 'cuss' word; there were quite a few people there and everybody was talking and this was quite a sound; he didn't continually direct his attention from time to time to the argument, but just glanced over there maybe twice and wondered what they were arguing about; he did not see anybody looking up there but imagined they did; and no remarks were made by people sitting by him.

The only other evidence offered by the plaintiff relating to any disturbance was given by the local police officer who was called by plaintiff as a witness in plaintiff's behalf. The officer said he came into the barroom, and while he was standing and talking with Gene and Jack Brow, Don Robbins came up in back of him and used a swear word directed, he believes, at Gene Brow, whose hand then 'flew out'. When this occurred, the officer said, 'Hey, let's not have any of that', and 'shot' his hand in front of Gene. Then Jack Brow stepped forward and the officer 'grabbed' him and before he 'could turn loose of Jack', the bottle came over his shoulder hit Jack on the head and shattered. The policeman categorically stated that from the time he came into the barroom, there was no argument, no appearance of danger, that Gene Brow was not quarreling, that Robbins was not quarreling with anyone, and there was no quarrel between anyone. He further testified that the first sound or movement that spelled trouble was when the swear words were uttered, and that he acted instantly, but there was nothing he could do to stop the bottle wielder.

After carefully studying the plaintiff's testimony, we believe a fair summary of it is: that plaintiff says he did not see either Jack or Gene Brow in the barroom that night, and did not recognize the people who were arguing; that after the argument died down and the arguing parties went toward the door as though leaving, the police officer came in about that time and talked to the arguing parties; that in a few minutes plaintiff heard a loud 'cuss' word, and one of the parties who was talking to the officer hit another with a bottle, and a particle of glass lodged in plaintiff's eye, which eye was later removed. Whether this was the fact or not, and notwithstanding plaintiff's failure to recognize either Jack or Gene Brow that night, the plaintiff's testimony identifies the two men whose arguing attracted his attention as being Jack and Gene Brow because they were the two men both he and his police officer witness said were the ones the officer was talking with when the bottle was broken. But the plaintiff's testimony does not show that either Jack or Gene Brow precipitated or caused the act of violence which resulted in plaintiff's injury or that the bottle breaking resulted from any disturbance caused by them. The court obviously deemed the evidence insufficient to implicate the defendant Gene Brow and directed a verdict in his favor. The plaintiff was evidently convinced the defendant Jack Brow was not involved in any way in bringing about the violence, because plainti...