Jefferson v. Nero

• Decision Date: 04 July 1955
• Docket Number: No. 5-726,5-726
• Citation: 280 S.W.2d 884,225 Ark. 302
• Parties: Sam JEFFERSON, Appellant, v. Frank NERO, Appellee.
• Court: Arkansas Supreme Court

Page 884

280 S.W.2d 884

225 Ark. 302

Sam JEFFERSON, Appellant, v. Frank NERO, Appellee.

No. 5-726.

Supreme Court of Arkansas.

July 4, 1955.

J. H. Carmichael, Jr., Josh W. McHughes, Little Rock, for appellant.

W. E. Phipps, North Little Rock, for appellee.

MILLWEE, Justice.

The parties to this suit are residents of the Dixie Addition to North Little Rock, Arkansas, where the appellant, Sam Jefferson, operated a cafe and beer tavern. When appellee, Frank Nero, entered appellant's place of business on December 13, 1952, the two men engaged in an altercation in which appellant shot and critically injured appellee. Trial of an action for damages brought by appellee resulted in a verdict and judgment in his favor for $8,000.

There is a sharp dispute in the testimony concerning the shooting and the incidents leading up to it. According to the testimony of appellee, the parties were good friends and there had geen no prior trouble between them when he went to appellant's place of business about 3 P.M. on the day in question for the purpose of purchasing a package of cigarettes. The business consisted of two rooms, 14 ft. x 20 ft. each, facing East on 'D' Street with the cafe located in the South room and the beer parlor in the North room. Appellee entered the cafe where appellant was sitting in front of the counter and the two exchanged greetings. Appellee then handed appellant a one-dollar bill to change so that he could get the cigarettes from a vending machine. Appellant went out the back door and returned shortly through the front door with a shotgun. When appellee started out the front door appellant drew the gun and told him to get back. When appellee backed up a few steps appellant made two or three motions with the gun which discharged and shot appellee at close range on the side of the face, seriously injuring him.

Appellee denied appellant's testimony to the effect that the two had quarreled on the morning of the shooting and at other times previously because of appellee's misconduct; and that appellee had been warned to stay away from appellant's place of business. According to appellant the shooting occurred when appellee insisted on playing a coin-operated misic machine, or nickelodeon, after appellant had told him not to do so. Appellant testified that appellee then advanced toward him with his hand in his pocket; that he was nervous and did not intend to shoot or hurt appellee but only to stop him; and that it was just an accident that he hit him.

I. The Statute of Limitations. The shooting occurred December 13, 1952, and this suit was filed March 19, 1954. Appellant pleaded, and now contends, that the action was one for assault and battery which must be brought within one year under Ark.Stats. § 37-201. The trial court agreed with appellee's contention that it constituted an action for negligence founded on an implied liability growing out of the proprietor-invitee relationship which may be brought within 3 years under Ark.Stats. § 37-206.

The amended and substituted complaint contained allegations as follows: 'The plaintiff further states that when the defendant so shamefully thus shot and injured him, he was a business visitor, an invitee, in defendant's cafe and beer tavern; that said business was open for business at the time; that plaintiff had entered for the sole purpose of buying a package of cigarettes; that at the time he was exercising due care as such business visitor and conducting himself as is customary for good customers; that the defendant owed him a duty to exercise ordinary care towards him, and not unlawfully, or otherwise, to injure him; that the defendant defaulted in such duties, and while in the course of his duties as cafe and beer tavern operator, did with willful and unlawful negligence injure the plaintiff as aforesaid; and as a direct and proximate cause thereof the plaintiff was rendered totally and permanently disabled * * *.'

'That while the relationship of proprietor-invitee existed between the parties hereto, the defendant proprietor attempted to eject plaintiff invitee from said beer tavern cafe, and in doing so used more force than was necessary, and thereby proximately injured the plaintiff.'

Appellant relies strongly on the case of McAlister v. Gunter, 164 Ark. 611, 262 S.W. 636, in which the court held that an action for shooting and wounding the plaintiff was barred by the one-year statute. The effect of our holding in that case was that an assault and battery was the only cause of action relied upon by the plaintiff, and that no special relationship, like that of proprietor-invitee asserted here, was alleged or proved. We think the principle followed in the earlier case of St. Louis, I. M. & S. Ry. Co. v. Mynott, 83 Ark. 6, 102 S.W. 380, is applicable and controlling here. There the plaintiff-passenger was allegedly assaulted, beaten and forcibly ejected from defendant's train by one of its trainmen. In rejecting the defendant's plea that the action was for assault and battery, hence barred by the one-year statute, the court held that the carrier-passenger relationship gave rise to an implied liability of the railway company for the wrongful acts of its servants in forcibly expelling plaintiff from the train. See also, St. Louis, I. M. & S. Ry. Co. v. Robertson, 103 Ark. 361, 146 S.W. 482, where the one-year statute was held inapplicable even though the relation of passenger and carrier might not have existed, provided the trainman used more force than necessary in expelling plaintiff as a trespasser.

Another well-settled rule is stated in 53 C.J.S., Limitations of Actions, § 107, as follows: 'If there is doubt as to which of two or more statutes of limitation applies to a particular action or proceeding, and it is necessary to resolve the doubt, it will generally be resolved in...