Glen Park Democratic Club, Inc. v. Kylsa

• Decision Date: 07 February 1966
• Docket Number: No. 20139,20139
• Citation: 213 N.E.2d 812,7 Ind.Dec. 515,139 Ind.App. 393
• Parties: GLEN PARK DEMOCRATIC CLUB, INC., an Indiana Corporation, Harry Kornafel, Appellants, v. Michael KYLSA, Appellee.
• Court: Indiana Appellate Court

Page 812

213 N.E.2d 812

139 Ind.App. 393

GLEN PARK DEMOCRATIC CLUB, INC., an Indiana Corporation Harry Kornafel, Appellants, v. Michael KYLSA, Appellee.

No. 20139.

Appellate Court of Indiana, In Banc.

Feb. 7, 1966.

Rehearing Denied March 17, 1966.

[139 INDAPP 394]

Spangler, Jennings, Spangler & Dougherty, Gary, George Sammons, Kentland, Samuel P. Moise, Gary, for appellants.

George Vann, John W. Barce, Barce, Barce & Vann, Kentland, Mario B. Tomsich, Gary, for appellee.

PER CURIAM.

Appellee recovered a verdict against appellants for damages for personal injuries after a trial by jury. Judgment was duly entered on such verdict. From the overruling of appellants' motion for new trial this appeal is prosecuted.

Appellants first set forth in the argument section of their brief the following specifications of their motion for new trial:

I. That the verdict of the jury is not sustained by sufficient evidence.

II. That the verdict of the jury is contrary to law.

[139 INDAPP 395] V[G]. The court erred in refusing to give to the jury defendants' (appellants') tendered Instruction 1 and 1A, tendered with the motion for directed verdict at the close of all the evidence respectively.

VI. The court erred in overruling defendants' (appellants') motion made at the close of all the evidence, to instruct the jury to return a verdict for the defendants.

VII. The court errer in overruling defendants' (appellants') motion made at the close of the plaintiff's (appellee's) evidence, to instruct the jury to return a verdict for appellants.

These appellants group under one argument as presenting the same question.

Appellee alleged in his complaint, in substance, that he entered the premises of the defendant, Glen Park Democratic Club, Inc., an Indiana corporation (hereinafter referred to as appellant-Glen Park), on which the corporation operated a restaurant and tavern, for the purpose of purchasing a meal and dining therein; that the defendant-Kornafel was in charge and control of said premises for and on behalf of said corporation; that while there the defendants, John Doe and Richard Roe, whose true Christian names and true names are unknown but who were personally known to defendant-Kornafel, were then in said restaurant premises, and that said defendants, Doe and Roe, were each bellicose, belligerent and vicious by nature, all of which defendant-Kornafel then knew; that, without any provocation whatsoever defendants Roe and Doe struck, beat, kicked and pummeled plaintiff-appellee, thereby injurying him; and that defendant-Kornafel was a witness to the assault, knew the character of the defendants, Roe and Doe, and failed to eject them from said premises and failed to protect plaintiff-appellee from their unprovoked assault.

'The proprietor of any house of public accommodation may be answerable for injury to a patron caused by the act of one of his other patrons as well as of his servant. He owes a duty to those who come to his place to protect [139 INDAPP 396] them from insult and other annoyances by or dangers from other guests. By the great preponderance of authority, this duty is not absolute, but is limited to the exercise of reasonable care, and the proprietor is liable only when he is negligent.'

29 Am.Jur., Innkeepers, Sec. 62, p. 50.

'Since the defendants are not only hotel operators but are engaged as well in the sale of intoxicating liquor, it is material to point out that they are under the duty to use reasonable care to protect guests and patrons from injury at the hands of irresponsible persons whom they knowingly permit to be in and about the premises on which their business is conducted.'

Connolly v. Nicollet Hotel (1959), 254 Minn. 373, 95 N.W.2d 657, 664, 74 A.L.R.2d 1227.

Although we have no knowledge of a decision in Indiana involving these facts, the law set forth in those jurisdictions having passed upon similar facts appears to be the same as our general law on negligence as it applies to licensees by invitation or, as sometimes called, business invitees.

The record is replete with sufficient evidence showing, or from which the jury could reasonably infer, that appellee was on the premises of appellant-Glen Park as a business invitee; that appellant-Kornafel was in charge of said premises on behalf of said corporation; that appellee was assaulted by other patrons on the premises, and thereby was injured; that appellant-Kornafel knew of prior threats by such patrons to injury appellee, either by directly being told by appellee or witnessing the same; and that appellant-Kornafel knew, by witnessing the assault upon appellee, that it was taking place. We are not here concerned, on appeal, with the fact that appellants' theory and evidence as to how appellee received his injuries are in direct conflict with appellee's theory and evidence.

A review of the evidence most favorable to appellee readily shows, in our opinion, that there is evidence to support the verdict of the jury, the action of the trial court in overruling appellants' motions for directed verdicts and refusing[139 INDAPP 397] the instructions tendered therewith, and that the verdict was not contrary to law.

In our opinion there was ample evidence of probative value as to each material element to support the verdict and we cannot say, as a matter of law, that reasonable men could not have arrived at the conclusion reached by the jury.

Appellants next assign as error the refusal of the trial court to give their tendered Instructions Nos. 4 and 30.

Appellants, in the argument portion of their brief, state that tendered Instruction No. 4 would have instructed the jury that if appellants 'did not have notice of the assault, if any, on the Appellee in sufficient time to avoid said assault, if any, in the exercise of reasonable and ordinary care, then your verdict must be for the appellants.' They further state that tendered Instruction No. 30, in essence, would have instructed the jury that appellants could not be liable to appellee unless the alleged assault took place 'under such circumstances that the defendant [defendants], Glen Park Democratic Club and Harry Kornafel, in the exercise of ordinary care, could have averted or avoided said beating, striking, kicking or pummeling plaintiff.'

Although we have misgivings as to the sufficient compliance by appellants with Rule 2-17, Rules of the Supreme Court, we are of the opinion that Instructions Nos. 4 and 30 tendered by appellants were adequately covered by other instructions tendered by appellants and given by the court. The jury, in our opinion, was correctly and thoroughly instructed concerning the necessity of knowledge on the part of appellants and the duty of care to which they were subject.

Appellants next argue the refusal of the trial court to give their tendered Instruction No. 7. In light of the recent decision of our Supreme Court in Miller v. Alvey (1965), Ind., 207 N.E.2d 633, that it is error to given an instruction on pure accident, no error was committed in refusing this instruction.

[139 INDAPP 398] See also: White v. Evansville American Legion Home Ass'n (Sec.965), Ind., 210 N.E.2d 845, 846.

Appellants next assert error in the giving by the trial court, over objection of appellants, of appellee's tendered Instruction No. 8, which is as follows:

'The law does not require demonstration or [of] that degree of proof which, excluding all possibility of error, produces absolute certainty, for such degree of proof is rarely possible. It is proper to find that a party has succeeded in carrying his burden of proof on an issue of fact, if the evidence favoring his side of the question is more convincing than that tending to support the contrary side, and if it causes the jurors to believe that on that issue of [the] probability of truth favors that party.'

Appellants first argue that said instruction was erroneous in that 'it completely ignored the fact that the plaintiff must prove the allegations in his complaint by a fair preponderance of the evidence.'

All applicable law in a given case need not be incorporated into one instruction, but instructions should be considered, with reference to each other, and as an entirety and not separately or in dissected parts. Van Drake v. Thomas (1942), 110 Ind.App. 586, 603, 38 N.E.2d 878; Livingston v. Rice (1933), 96 Ind.App. 176, 178, 184 N.E. 583.

This was not the only instruction given by the court on the issues of weighing the evidence, burden of proof and preponderance of evidence, and we are required to consider this instruction in light of all other instructions given in determining if the giving of the instruction objected to was reversible error. The record shows that other instructions given by the court adequately covered the objection by appellants to this instruction.

Appellants next contend that said Instruction No. 8 is not the law and was misleading. They cite only Nickey v. Steuder (1905), 164 Ind. 189, 73 N.E. 117, in support of [139 INDAPP 399] this contention. The instruction condemned in the Nickey case can be distinguished from the one presently before us.

Other than appellants' conclusions and a quotation from the Nickey case, they fail to point out in what way the instruction is not the law, or in what way it misled the jury. This instruction, not being mandatory, is to be read together with all other instructions given. We are of the opinion that this instruction, when read in relation to all other instructions given, did not mislead the jury and, therefore, was properly given. Also, we are of the opinion that the jury was properly and adequately instructed by the court on this issue. We find no reversible error in the giving of Instruction No. 8.

Appellants next assign as error the refusal of the trial court to give their tendered Instruction No. 21, which is as follows:

'You are instructed that there is no evidence to sustain the following specification contained in plaintiff's...