Kane v. Fields Corner Grille, Inc.

• Decision Date: 09 January 1961
• Citation: 341 Mass. 640,171 N.E.2d 287
• Parties: James P. KANE v. FIELDS CORNER GRILLE, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 287

171 N.E.2d 287

341 Mass. 640

James P. KANE v. FIELDS CORNER GRILLE, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1960.

Decided Jan. 9, 1961.

Francis J. DiMento, Boston, for plaintiff.

Thomas D. O'Brien III, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

1. There was no error in denying the defendant's motion for a directed verdict. The jury could have found that the plaintiff sustained injuries on January 28, 1956, as a result of an assault by his cousin Robert O'Brien while the plaintiff, in a group which did not include O'Brien, was a patron in the defendant's bar in Dorchester. When O'Brien came into the bar he at once objected to the plaintiff's presence on 'my corner,' and continued remarks against the plaintiff for from ten to twenty minutes, acting boisterously, and saying after some time that he was 'going to bodily throw someone out.' There were 'words back and forth'; loud talk; 'a lot of commotion.' The bartender heard and observed this but walked away when the plaintiff said that O'Brien was under age and 'should be shut off because there was going to be trouble.' O'Brien then immediately started yelling and charged the plaintiff's group with an ash tray in his raised hand, the plaintiff 'got twisted off the stool,' and O'Brien 'landed' on him. On these facts a finding of the defendant's negligence was warranted. McFadden v. Bancroft Hotel Corp., 313 Mass. 56, 46 N.E.2d 573; Quigley v. Wilson Line of Mass., Inc., 338 Mass. 125, 154 N.E.2d 77.

2. The was no prejudicial error in the reference in the charge to 'highest degree of care.' The judge, adopting, it appears, language in the Quigley case (338 Mass. at page 128, 154 N.E.2d at page 79), said: 'Now, as far as the tavern keeper is concerned, it's the duty of the person in control of a tavern or bar to exercise reasonable or ordinary care for the safety of a business visitor and to protect him from assault by other patrons and to use the highest degree of care in anticipation and prevention of violence by other patrons and even strangers as is consistent with the nature and the operation of the business. The tavern keeper, however, is not an insurer of the safety of his patrons, nor is he required by law to foresee and guard against unlikely danger and probable harm. The test is 'foreseeable harm.' And if the acts of an assailant could be foreseen, then the tavern keeper owed the guest or patron the duty to furnish him protection. That is what you are to determine in this case, whether the conduct of O'Brien, as testified to here--if you believe there was such conduct--whether that conduct was such that it might be foreseeable that he might cause injury to the patron Kane.'

The concept of 'highest degree of care' is commonly stated in carrier cases where it reflects the circumstances of carrier control and the potentially serious consequences of an accident. Donahoe v. Boston Elev. Ry., 214 Mass. 70, 72, 100 N.E. 1033; Carson v. Boston Elev. Ry., 309 Mass. 32, 35, 33 N.E.2d 701; Hathaway v. Checker Taxi Co., 321 Mass. 406, 411, 73 N.E.2d 603, and cases cited; Kuhlen v. Boston & N. St. Ry., 193 Mass. 341, 346, 79 N.E. 815, 7 L.R.A.,N.S., 729; Glennen v. Boston Elev, Ry. Co., 207 Mass. 497, 498, 93 N.E. 700, 32 L.R.A.,N.S., 470; Holton v. Boston Elev. Ry. Co., 303 Mass. 242, 244-245, 21 N.E.2d 251.

The underlying duty in every case, however, is to exercise the care which the circumstances reasonably require. Rawson v. Massachusetts Operating Co. Inc., 328 Mass. 558, 560, 105 N.E.2d 220, 29 A.L.R.2d 907; Carson v. Boston Elev. Ry., 309 Mass. 32, 35, 33 N.E.2d 701; Fortier v. Hibernian Bldg. Ass'n of Boston Highlands, 315 Mass. 446, 447, 450-451, 53 N.E.2d 110, and cases cited; Restatement: Torts, § 348. The care to be exercised is always proportionate to the dangers to be anticipated. White v. Checker Taxi Co., 284 Mass. 73, 76, 187 N.E. 49. Most cases 'present a wide variation in their facts,' Rawson v. Massachusetts Operating Co., Inc., supra [328 Mass. 558, 105 N.E.2d 221], and there are probably few categories of cases to which a 'highest care' rule could rightly be applied. It may be questioned how far the statement of such rule is helpful, for substantial qualifications are necessary and leave, as the only clear principle, reasonable care in the circumstances. For example, in carrier cases, the highest degree of care is only that 'consistent with the requirements of the public for speedy and inexpensive as well as safe transportation and with the practical operation of the business.' Carson v. Boston Elev. Ry. Co., 309 Mass. 32, 35, 33 N.E.2d 701, 703. The better practice is to refer only to reasonable care with appropriate reference to the circumstances.

The judge did not substantially misstate the law applicable to this case, reading together all that was said as to reasonable care. Hence we pass the issue of whether the business of tavern keeper could justify a general highest care rule as suggested in Quigly v. Wilson Line of Mass., Inc., 338 Mass. 125, 128-129, 154 N.E.2d 77, with citation of McFadden v. Bancroft Hotel Corp., 313 Mass. 56, 59-60, 46 N.E.2d 573, 575. In the McFadden case however it was deemed 'unnecessary to determine the precise extent of the rule.'

The substance of the requirement to exercise reasonable care to prevent foreseeable harm was stated. The circumstances did call for special care in respect of O'Brien's conduct. As in Quigley v. Wilson Line of Mass., Inc., 338 Mass. 125, 154 N.E.2d 77, the business included the serving of intoxicants known to make some persons unreasonably aggressive, and the person in charge for the defendant had notice of belligerent and obnoxious acts which could be held to show that more serious action impended. We have already held that an omission to state the highest care rule in a carrier case is not reversible error where the substance underlying it is given, that is, that the jury were to consider that the 'occupants of [the] vehicle * * * [had] no control over its operation and little opportunity for self protection.' Hathaway v. Checker Taxi Co., 321 Mass. 406, 411, 73 N.E.2d 603, 607. 'The instructions asked * * * would have added nothing substantial to what had already been said. Essentially the question * * * was the negligence of the defendant * * * on which legalistic refinements would have afforded little or no assistance.' Ibid., 412, 73 N.E.2d 607. Here also the basic principles were given, and the addition of the 'legalistic refinements,' even if not strictly applicable as stated, was not prejudicial.

3. There was no reversible error in the ruling in the course of argument, or in the charge, in respect of damages. In his closing argument the plaintiff's attorney asserted that 'the plaintiff's earning capacity was to be measured by his capacity as a bricklayer and in the water department and that he had an earning capacity of $175 a week.' The defendant objected and asked the judge to instruct the jury to disregard this as there was no evidence of the plaintiff's earning capacity as a bricklayer and 'no evidence * * * that he ever earned $175 a week.' The judge said 'I'll take care of it.' The defendant excepted to the judge's failure to do so at that time. There was no error; this was in the judge's discretion. Howes v. Grush, 131 Mass. 207, 211.

In the charge the judge said, 'You may consider * * * the loss of earning capacity. The expressions in evidence of values are for you to consider. You are to determine that. Your recollection of the testimony will govern as to what the wages were, whether there were any wages in connection with any bricklaying or in connection with the water department.' The defendant excepted 'to your Honor's saying that they may consider loss of earning capacity as a bricklayer, as there was no evidence that he had earning capacity as a bricklayer at the time of the accident or what that capacity was or what he would earn.'

The plaintiff had testified that he was able to return to his trade as a bricklayer at the middle or the end of May. When asked for whom he worked just prior to the accident he answered 'I had a $22,000 job for myself and another fellow for the city of Boston.' This answer was struck. To the next question 'At the last job you worked before the accident, what was your weekly pay?' he answered '$175 a week,' and the defendant's counsel said 'I pray your Honor's judgment. We still don't know where he worked. I object.' The judge said 'You may inquire as to where he worked.' Q. (by plaintiff's attorney) 'Where was the site of your job?' A. 'The addition to the Hyland Street Garage for the city of Boston. And the job was bonded.' Q. 'And you made $175 a week?' A. 'Yes.' The defendant's attorney said 'I pray your Honor's judgment and ask that be stricken.' The judge said, 'It may go out.' The plaintiff then testified that he worked 'forty-eight to fifty hours a week on account of I was supervising that job.'

The exception to the charge considered apart from the objection during argument was not well taken. There was evidence of earning capacity as a bricklayer, and in a supervisory capacity (inferentially in connection with bricklaying), and there was precise evidence of earnings of $50.50 a week in a part-time job with the...