Guipe v. Jones, 9.

• Decision Date: 05 January 1948
• Docket Number: No. 9.,9.
• Citation: 320 Mich. 1,30 N.W.2d 408
• Parties: GUIPE v. JONES et al.
• Court: Michigan Supreme Court

320 Mich. 1

30 N.W.2d 408

GUIPE

v.JONES et al.

No. 9.

Supreme Court of Michigan.

January 5, 1948.

Appeal from Circuit Court, Genesee County; Philip Elliott, judge.

Action by Fred Guipe against Reese Jones, doing business as Reese Jones Bar, an d the Indemnity Insurance Company, a foreign corporation, surety on the statuto ry bond of Reese Jones, to recover for injuries sustained by plaintiff when str uck by a bartender employed by Reese Jones. From a judgment in favor of the pl aintiff against Reese Jones, Reese Jones appeals, and from an order dismissing the action as against the Indemnity Insurance Company, the plaintiff cross-appe als.

Judgment for plaintiff against Reese Jones affirmed, and cross-appeal not consi dered.

Before the Entire Bench.

James M. Pearson, of Flint, for appellant and cross-appellee.

Walter C. Jones and Maurine L. Jones, both of Flint, for plaintiff, appellee an d cross-appellant.

DETHMERS, Justice.

Defendant Reese Jones is the owner of a bar operated under a class “C” liquor license. Defendant Indemnity Insurance Company is the surety on defendant Jones' statutory bond filed with his application for the license.

During Jones' absence and while a bartender employed by him was in charge of th e place, plaintiff entered, ordered certain drinks and paid the waitress who se rved him. Thereafter he was served a drink which he claimed he had not ordered and for which he refused to pay the waitress. The bartender then attempted to collect from plaintiff and, upon his continued refusal to pay, struck him, cau sing plaintiff to lose the sight of an eye. Although the waitress testified that, in accord with the practice in the place, she had paid the bartender for the drink before she served it to plaintiff, and while defendants claim that, in consequence, the bartender was acting as the agent of the waitress in attemptin g to collect from plaintiff, the undisputed testimony of this same waitress is that it was the bartenders's duty and responsibility and his uniform practice, as an employee of defendant, to see to it that patrons paid the waitresses for drinks served.

Upon trial the court dismissed the case against defendant Indemnity Insurance C ompany. The jury returned a verdict for plaintiff and against defendant Jones in the amount of $7,500.00. Defendant Jones appeals and plaintiff cross-appeal s from the order dismissing as to defendant Indemnity Insurance Company.

Defendants' brief, containing, under the heading of “Argument”, some 37 pages o f testimony taken, page after page, from the printed record, is not too helpful to the court. Under the heading of “Questions Involved” defendants list five questions, the first four of which inquire whether the court erred in refusing (1) to direct a verdict for defendant Jones at the close of plaintiff's proofs,(2) to direct a verdict for defendant Jones at the close of defendants' proofs, (3) to grant defendant JOnes' motion for a judgment non obstante verdicto, (4) to grant defendant Jones' motion for a new trial.

As a fifth question involved, defendants ask whether the court erred in refusing to give two of defendants' requests to charge. The first request was predicated on the assumption that the bartender struck plaintiff while acting as the agent of the waitress and outside the scope of his duties as defendant's employee. The instructions given by the court fairly and adequately covered defendants' claim in this respect, properly leaving...