Gregorc v. Londoff Cocktail Lounge, Inc.

• Court: Missouri Supreme Court
• Writing for the Court: STORCKMAN
• Citation: Gregorc v. Londoff Cocktail Lounge, Inc., 314 S.W.2d 704 (Mo. 1958)
• Decision Date: 14 July 1958
• Docket Number: No. 46237,No. 2,46237,2
• Parties: Richard C. GREGORC, Appellant, v. LONDOFF COCKTAIL LOUNGE, Inc., A Corporation, Respondent

Page 704

314 S.W.2d 704

Richard C. GREGORC, Appellant, v. LONDOFF COCKTAIL LOUNGE, Inc., A Corporation, Respondent.

No. 46237

Supreme Court of Missouri, Division No. 2.

July 14, 1958.

John J. Morris, Lusser & Morris, St. Louis, for appellant.

Alexander & Robertson, L. A. Robertson and Ernest E. Baker, St. Louis, for respondent.

STORCKMAN, Judge.

Plaintiff, while patronizing defendant's cocktail lounge, was wounded during an exchange of revolver fire between a police officer and another patron whom the officer was trying to disarm and arrest. Plaintiff sought damages for his personal injuries and obtained a judgment for $15,000. The trial court sustained defendant's motion for a new trial on the ground that one of plaintiff's instructions was erroneous and the plaintiff appealed.

The defendant company operated the cocktail lounge at 2357 Palm Street in St. Louis where alcoholic beverages were dispensed and food was served. In a building adjoining the cocktail lounge bowling lanes were operated by an affiliated company. There was an inside door affording passage from one to the other of the two places of business without using the street entranceways. During the evening of Saturday, June 12, 1954, the plaintiff, his wife, and two friends, Carl M. Krueger and Byerd E. Kirk, went to the bowling lanes and practiced bowling until after midnight. At about 12:40 a. m. they quit bowling and went into the cocktail lounge, using the inside door, and sat at the first table they encountered after entering the barroom. After they had ordered beer and been served, Kirk called over the manager of the lounge, Harry Londoff, with whom Kirk was acquainted and introduced Mr. Londoff to the plaintiff and the others at the table. After a brief conversation the manager ordered a round of drinks 'on the house' and left. Shortly thereafter the plaintiff and his companions observed a man, about 35 feet away, whom they later learned was Paul Baykowski, pointing a revolver at another man standing at the bar, facing Baykowski. The plaintiff testified he heard no loud talking or unusual noises; however, the man continued to hold the gun on the other for a period variously estimated at 15 to 20 minutes. During this interval plaintiff's wife left to attend their eleven year old boy who was asleep in their automobile on a parking lot and was not present when the shooting occurred. However, the three men, including the plaintiff, remained at the table.

During the evening of June 12 Paul Baykowski had been drinking whiskey highballs at the bar. He left the lounge before midnight without indicating that he intended to return. Shortly before closing time, which was 1:00 a. m., the manager, having locked the back door and turned off the outside lights, was preparing to lock the other street door when Baykowski appeared at the entrance. Londoff told Baykowski he was closing, but Baykowski, saying, 'I know,' pushed Londoff aside and went to the bar where Donald Syberg, another patron, was seated. Baykowski told Syberg to stand up, that he was going to shoot him. Syberg got to his feet and stood with his back to the bar. Baykowski stood opposite with a drawn revolver pointed at him. Baykowski asked Syberg what he was going to do with his, Baykowski's girl, Mary Brostoski, with whom Syberg had been associating during the evening. They 'spoke back and forth about her.' Syberg, on behalf of plaintiff, testified that Baykowski spoke in a loud voice, told him the type of pistol he had, that it was loaded and that he was going to use it. In this situation four persons tried to get Baykowski to put away his gun and leave. Two of them were employees of the defendant and two were bar customers. First the manager, Harry Londoff, a man 60 years of age, went to where Baykowski was holding Syberg at gun point and asked Baykowski to put away his gun and leave, but Baykowski did not heed him. Londoff then went into the kitchen, laid down on the floor, and did not return until after the shooting was over. Mary Brostoski, the girl in dispute, tried to get Paul to leave and he struck her, knocking her aside. Another customer, Stephan George, tried to get Baykowski to put up his gun, but was also pushed away. One of defendant's waitresses, Lillian Ann Nickelson, who had known Baykowski for some time, talked to Paul, at Mr. Londoff's request, but could not get him to put the gun away. Londoff had not known Baykowski prior to May 1, 1954, when the defendant took over the operation of the cocktail lounge.

This impasse continued for a period variously estimated at 15 to 20 minutes until the arrival of police officers who had been called by a customer at the request of one of defendant's waitresses. Sergeant Lee Soete of the Metropolitan Police Department of St. Louis entered the tavern through the entrance from the bowling lanes. As he stood with drawn gun behind the table at which the plaintiff was seated the officer saw Baykowski with his revolver pointed at Syberg. Sergeant Soete called to Baykowski to 'Drop that gun' whereupon Baykowski turned and shot at the officer. Sergeant Soete returned the fire, shooting six times. Baykowski was wounded by five of the bullets. Two shots were fired from Baykowski's gun; one of them struck the plaintiff near the right nostril, knocking out a number of teeth, shattering his right lower jaw and lodging in his shoulder. Syberg was also wounded.

Plintiff submitted his case to the jury on defendant's negligent failure to eject Paul Baykowski from the premises or to have warned the plaintiff. The instruction in question, plaintiff's Instruction No. 1, advised the jury that the defendant had a duty to exercise ordinary care for the reasonable protection of its patrons and that, if the jury found the plaintiff, while a patron of the defendant, was shot and injured by Paul Baykowski, 'and if you further find that said Paul Baykowski did exhibit a gun there in the presence of other patrons and did for a period of time, from fifteen to twenty minutes, continue to exhibit said gun and to point said gun in and about said premises there; and if you further find that such conduct on the part of Paul Baykowski was dangerous to the safety of patrons in said premises there, and if you further find that said defendant knew or should have known of the aforesaid condition and behavior of said Paul Baykowski in time thereafter and before the aforesaid shooting for said defendant to have ejected said Paul Baykowski from said premises or to have warned plaintiff and that said defendant in the exercise of ordinary care could have done so, and that in so failing if you find the defendant, its agents and employees, did fail, said defendant was negligent,' and if such negligence caused plaintiff's injury while plaintiff was exercising ordinary care for his own safety, the verdict should be for the plaintiff.

The trial court sustained defendant's motion for a new trial on the ground the evidence did not justify the submission of either of the grounds of negligence; that is, the failure to warn the plaintiff or the failure to eject Baykowski. If there was no substantial evidence supporting the theories of negligence submitted, the instruction was erroneous and the grant of a new trial was proper. Hough v. Rapidair, Inc., Mo., 298 S.W.2d 378, 385-6(12); Behen v. St. Louis Transit Co., 186 Mo. 430, 85 S.W. 346, 349(4). Since the charges of negligence were submitted in the disjunctive, the instruction is erroneous if either of the assignments is not supported by substantial evidence....