Huddleston v. Clark
| Decision Date | 05 March 1960 |
| Docket Number | No. 41541,41541 |
| Citation | 349 P.2d 888,186 Kan. 209 |
| Parties | Vernon HUDDLESTON, Appellant, v. Bernard H. CLARK and Oleta M. Clark, d/b/a Hub Bar and Grill, a/k/a Midway Bar, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Error in excluding evidence is not reviewable in this court unless the excluded evidence was properly produced and presented in the trial court in the manner prescribed by the code of civil procedure (G.S.1949, 60-3004); that is, by affidavit, deposition or oral testimony, in order to inform the court of the gist of the evidence; otherwise, the trial court, or this court on appeal, cannot determine whether the testimony was admissible.
2. While the owner and operator of a public tavern and grill is held to a stricter accountability for injuries to patrons than is the owner of private premises generally, the rule is that he is not an insurer of the patrons, but owes them only what, under the particular circumstances, is ordinary and reasonable care.
3. Record examined in an action wherein plaintiff sought to recover damages for personal injuries sustained by reason of indiscriminate gunshots fired by a customer in defendants' place of business, and held that the trial court did not err in sustaining defendants' demurrer to plaintiff's evidence.
Robert M. Brown, Topeka, argued the cause, and Reese H. Robrahn, Topeka, was with him on the briefs, for appellant.
Herbert A. Marshall, Topeka, argued the cause, and Allen Meyers, Philip C. Gault and Doral H. Hawks, Topeka, were with him on the briefs, for appellees.
This was an action for damages for personal injuries sustained by Vernon Huddleston, plaintiff (appellant), by reason of indiscriminate gunshots fired by a customer in the business establishment of defendants (appellees), Bernard H. and Oleta M. Clark. The lower court sustained defendants' demurrer to plaintiff's evidence and overruled plaintiff's motion for a new trial, from which rulings plaintiff appeals.
Plaintiff's petition, in substance, alleged that he entered defendants' Hub Bar and Grill, ordered a sandwich and coffee, seating himself at the lunch counter, where he consumed the meal and was in the act of paying for it when one Henry Donohue entered through the front door of the establishment with an automatic revolver in his possession and began spraying bullets in the general direction of the plaintiff and other customers, with the result that two of the bullets entered plaintiff's body, causing injury to him as alleged. Plaintiff further alleged that Donohue entered the establishment in an intoxicated condition and that defendants and their servants knew or should have known Donohue was a man of vile, vicious and dangerous propensities and would make good his threats to return with a gun and shoot up the place previously made by him when put out of the bar and grill earlier in the afternoon; that the defendants were negligent in not notifying law enforcement authorities of the threatening and impending danger and in not taking any action to prevent the return of Donohue and the carrying out of the mentioned threats.
Defendants' answer denied that the injuries sustained by plaintiff were in any way caused by any negligent acts or omissions on their part. They further denied that they or their agents knew or had reason to anticipate Donohue would come into their place of business and injure the plaintiff by firing a gun.
Plaintiff's evidence, giving it the most favorable inferences to which it is entitled, as against a demurrer, reveals that he was a laborer, that defendants Clark operated a place of business known as the Hub Bar and Grill, that Henry Donohue operated a watch shop located in the same block as defendants' bar and grill; that defendants had known Donohue for approximately ten years--their place of business being located only two doors from Donohue's shop--and Donohue was a frequent customer of defendants; that they knew Donohue had suffered an injury to his head, whereby part of the bone and brain was removed and a metal plate inserted, and was an eccentric individual who should not drink much and, for that reason, they had left a standing order with their employees not to serve him any beer on their premises.
The testimony further reveals that on the day in question plaintiff entered defendants' bar and grill, ordered a sandwich and coffee, and after finishing his meal and while standing near the cash register to pay for the food, he observed Donohue, whom he did not know, with an object in his hand; that Donohue let out a yell and started shooting, spraying four or five bullets indiscriminately in plaintiff's direction, one bullet striking the finger on plaintiff's left hand and one penetrating his upper left arm, causing him to suffer a fifty per cent permanent partial disability to his left arm and hand.
The evidence further disclosed that defendants accepted Donohue as a customer as long as he did not drink beer; that prior to the time plaintiff was shot and in the forenoon of the same day, Donohue entered defendants' establishment and ordered a beer, which the waitress refused to serve him. He then used foul and vulgar language toward the waitress, which he had done many times before, and told her he was 'going to come back and shoot her but[t] off.' Donohue had made this statement many times before. After this encounter, Donohue returned again in the afternoon and upon asking for a beer and being again refused one by the waitress, he again used vulgar language toward her, at which time she requested Ole Johnson, an employee of defendants, to put Donohue out of the establishment. Johnson escorted Donohue to the door and told him to stay out, whereupon Donohue said, 'I'll get my gun and come back and shoot up the place.'
Shortly thereafter, Donohue was seen in the lobby of the Norva...
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...147 Wash. 257, 265 P. 472 (1928). Defendants rely upon Moore v. Yearwood, 24 Ill.App.2d 248, 164 N.E.2d 215 (1960); Huddleston v. Clark, 186 Kan. 209, 349 P.2d 888 (1960); Swanson v. Dugout, Inc., 256 Minn. 371, 98 N.W.2d 213 (1959); Romero v. Kendricks, 74 N.M. 24, 390 P.2d 269 (1964); Kin......
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