Klingbeil v. Truesdell, 37638

Citation256 Minn. 360,98 N.W.2d 134
Decision Date07 August 1959
Docket NumberNo. 37638,37638
PartiesFred C. KLINGBEIL, Respondent, v. Orville S. TRUESDELL, etc., et al., Defendants, Orville S. Truesdell, d.b.a. Dew Drop Inn, Appellant.
CourtSupreme Court of Minnesota (US)

Syllabus by the Court

1. A patron of a 3.2 bar has a right to believe that he is in an orderly house and that its operator personally or by his delegated employee will exercise reasonable care to the end that the doings in the house will be orderly.

2. Where the plaintiff left a 3.2 beer establishment to report to police activities on the part of certain patrons there which he considered unlawful and thereafter returned to the premises and had a further argument with an intoxicated person thereon, following which he was assaulted and injured, the question as to his status as a licensee or invitee upon the premises was one of fact for the jury.

3. The standard by which the conduct of a person in a particular situation is to be judged in determining whether he was negligent is the care which an ordinarily prudent man would exercise under like circumstances.

4. The right of cross-examination, which is of fundamental importance in the discovery of truth in the trial of a case is intended for use by an 'opponent' for the purpose of further examination of a witness proffered by the 'opposite' side so as to bring to light qualifying or contradictory facts or circumstances not disclosed by the witness on direct examination and for the further purpose of developing those facts which may diminish the personal trustworthiness or credit of the witness which may have remained undisclosed on direct examination. The latitude to be allowed in cross-examination on the merits is largely within the discretion of the trial court, and that discretion was not abused where one codefendant was denied the right to cross-examine another codefendant where it appeared that the witness was not an Opponent and not an Adverse witness.

5. Under circumstances where the injured plaintiff, who was self-employed, was unable to speak or write because of paralysis and aphasia suffered as a result of the defendant's acts, it was not prejudicial error for the trial court to permit a witness who had knowledge of the injured plaintiff's business and activities to testify as to the reasonable value of his services as bearing on the question of damages through loss of income. Such testimony could properly be considered by the jury along with other evidence and inferences relating to the subject of loss of income attributable to the plaintiff's personal efforts.

6. A verdict of $32,000 was not excessive where it appeared from the record that the plaintiff was a man 65 years of age; was in excellent health, active, and working at the time of the injury; had doctor and medical expenses to date of trial amounting to $2,133.95; had loss of earnings for a period of 17 months; and was permanently disabled and will need constant care and attention the rest of his life by reason of aphasia and paralysis of his right arm and leg.

Mahoney & Mahoney, G. P. Mahoney, Harry H. Peterson, Minneapolis, for appellant.

S. P. Gislason, Gislason, Reim, Minium, Alsop & Dosland, New Ulm, Peterson, Peterson & Krieger, Albert Lea, for respondent.

MURPHY, Justice.

This case involves an action against the operator of a tavern for injuries sustained by a patron as a result of an assault committed upon the defendant's premises. The plaintiff had a verdict. The defendant appeals from an order denying his motion for judgment notwithstanding the verdict or for a new trial and from the judgment.

Viewing the facts in the light most favorable to the verdict, it appears from the record that at about 9 a.m. one Carl Weik and his friends, Melvin and Lester Ackland, entered the defendant's tavern in the city of Albert Lea. Carl Weik's wife followed a few minutes later. Ben Holte, another patron, was there when they arrived. They remained in the tavern until about 4:30 p.m., during which time they were drinking beer and whiskey. Other patrons came and went during this interval. There were arguments and boisterous conduct during this time.

At about 3 p.m. the plaintiff entered the tavern. He exchanged words with other patrons of the tavern and, after some conversation with the Weiks and the Acklands, he left the premises, saying that he was going to get a policeman. It appears that he actually found a police officer and reported to him that the Weiks were permitting Holte, an elderly man, to spend his money buying beer for them and that Weik should be thrown in jail. The police officer declined to do anything, after which plaintiff said, 'I ought to punch him in the snoot.' After an absence from the premises for about 20 minutes, plaintiff returned. During this time Weik was pacing back and forth in the bar and in statements to others made threats against the plaintiff. The general atmosphere in the tavern at that time was one of trouble and agitation. After plaintiff returned to the bar, he renewed his conversation with Weik during the course of which a struggle began. Both men fell to the floor. The barmaid who was on duty started around the bar to see what was happening; and as plaintiff was about to get up from the floor and was on his knees, Melvin Ackland, who had been standing by but up until that moment had not been a part of the fracas, struck him a blow on the left side of his head which knocked him backwards. As a result of this assault the plaintiff suffered severe and permanent injuries.

1. The defendant's first contention is that the operator of a 3.2 beer tavern is not liable to a patron of his establishment for injuries suddenly and unexpectedly inflicted upon him by another patron under circumstances where the operator could not have prevented the injuries by the exercise of reasonable care. It is unnecessary to labor this point further than to state that the issue here is controlled by our decision in Windorski v. Doyle, 219 Minn. 402, 18 N.W.2d 142, and Priewe v. Bartz, 249 Minn. 488, 83 N.W.2d 116. In the latter case we observed that the operator of a 3.2 beer establishment owes a duty to those coming upon his premises to exercise reasonable care to protect them from injury at the hands of other patrons. He has the duty to see to it that a patron is not injured by vicious or drunken individuals whom he permits to frequent his establishment. We stated (249 Minn. 491, 83 N.W.2d 119):

'* * * A patron at a 3.2 bar has a right to rely on the belief that he is in an orderly house and that its operator, personally or by his delegated employee, will exercise reasonable care 'to the end that the doings in the house shall be orderly.' See, 30 Am.Jur., Intoxicating Liquors, § 609; Curran v. Olson, 88 Minn. 307, 308, 92 N.W. 1124, 60 L.R.A. 733; Mastad v. Swedish Brethren, 83 Minn. 40, 85 N.W. 913, 53 L.R.A. 803; Christianson v. Hager, 242 Minn. 41, 64 N.W.2d 35; Klaman v. Hitchcock, 181 Minn. 109, 231 N.W. 716; Sylvester v. Northwestern Hospital, 236 Minn. 384, 389, 53 N.W.2d 17, 20; Cherbonnier v. Rafalovich, D.C.Alaska, 88 F.Supp. 900; Annotation, 29 A.L.R.2d 911; Windorski v. Doyle, 219 Minn. 402, 18 N.W.2d 142.'

We further observed that (249 Minn. 492, 83 N.W.2d 120):

'* * * 'authorities recognize that drunken behavior is unpredictable; also that slight irritations, real or imaginary, may cause outbursts of anger and lead to aggressive acts." 1

The presence of an intoxicated person upon the premises immediately exposes the proprietor to the hazards of liability resulting from the unpredictable conduct of such person and, when it appears that such intoxicated person might cause a disturbance or harm to other patrons, the proprietor is obliged to take some affirmative action to maintain order on the premises by demanding that such person leave or by calling authorities to enforce such demand.

Here the evidence establishes that Carl Weik, his wife, and Mclvin Ackland had been on the premises from 9:00 a.m. until approximately 4:30 p.m. During this time they had been drinking beer and, although it was a 3.2 establishment, they had also been drinking whiskey. The conduct permitted in the establishment during this time was disorderly. There were quarrels and arguments. The language used by some of the patrons was inflammatory. Mr. and Mrs. Weik quarreled over a bottle of whiskey and during the course of the quarrel the wife struck her husband. We think there is ample evidence in the record from which the jury could find that both Weik and Ackland were intoxicated to the point where the proprietor or his servant should have been aware of the fact that their conduct would lead to trouble.

2. The defendant, however, contends that the authorities just cited do not control because the plaintiff was a licensee and not an invitee to whom he owed the duty to exercise reasonable care to protect him from injury at the hands of other patrons. The defendant argues that the plaintiff at the time of his injury was not upon his premises as an invitee or business patron but that he came there to pursue an argument with Weik. He asserts that plaintiff was a licensee as a matter of law.

It appears that in Yeager v. Chapman, 233 Minn. 1, 45 N.W.2d 776, 778, 22 A.L.R.2d 1260, we adopted the test in Restatement, Torts, § 332, to the effect that:

'A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.'

The defendant does not contend that the trial court did not state the rule correctly in its instructions.

Since the crucial factor in determining plaintiff's status on defendant's property at the time of injury is the purpose for which the plaintiff came upon the premises, it is necessary to examine the record as it relates to plaintiff's position as a licensee or invitee at the time the injury occurred. While on...

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