Lombardy v. Stees, 17739

• Decision Date: 05 December 1955
• Docket Number: No. 17739,17739
• Citation: 132 Colo. 570,290 P.2d 1110
• Parties: Andy LOMBARDY, Plaintiff In Error, v. John W. STEES and Floyd Brasler, Defendants in Error.
• Court: Colorado Supreme Court

Page 1110

290 P.2d 1110

132 Colo. 570

Andy LOMBARDY, Plaintiff In Error, v. John W. STEES and Floyd Brasler, Defendants in Error.

No. 17739.

Supreme Court of Colorado, En Banc.

Dec. 5, 1955.

Rehearing Denied Jan. 3, 1956.

C. R. Monson, Robert H. Gleason, Steamboat Springs, for plaintiff in error.

Nicholas Magill, Steamboat Springs, for defendant in error, John W. Stees.

HOLLAND, Justice.

There is no substantial conflict in the testimony in this case, and the facts are summarized as follows:

May 10, 1953, plaintiff in error, defendant in the trial court, was the owner of the Pioneer Hotel and Bar at Steamboat Springs, Colorado, and Floyd Brasier was in his employ as bartender. Defendant in error Stees, plaintiff in the trial court, was a patron of the bar on the night in question. It is alleged in the complaint that Brasier, the bartender, at the time mentioned, and while performing his duties as bartender and in ejecting plaintiff from the premises, did unlawfully assault plaintiff causing serious personal injury, and by amendment to the complaint, prayed for damages in the sum of $30,000. The defendants named were Lombardy and Brasier. Lombardy filed answer to the complaint denying that the assault was in performance of Brasier's duty as bartender and, for lack of information, denied the damages as alleged. Thus formed, the issues were tried to a jury in November of 1954, which failed to reach a verdict. Another trial during the April term, 1955, resulted in a verdict against Lombardy, plaintiff in error, in the sum of $20,000. No service was had upon Brasier and no appearance was made for him in the trial or in this court.

Lombardy prosecutes this writ of error on the ground that plaintiff did not sustain the burden of proof that the assault complained of was committed within the scope of Brasier's employment, and in fact, introduced no evidence thereon; that the instructions to the jury were erroneous in that emphasis was directed to certain aspects of the evidence and they did not set forth the applicable law.

At this trial the testimony taken in the former trial was, by stipulation, used in the second trial. The substance of the testimony discloses the following facts: Brasier was employed by plaintiff, was a bartender, and was working in that capacity on the date involved. Brasier came on duty at 2:00 p. m. at which time Lombardy's shift ended, and continued on duty until 10:00 p. m., when Lombardy took over and operated until midnight. On the night in question, Lombardy was not on the premises at the time of the assault. The only express instruction to Brasier was that if anyone got too much to drink he was not to be served further. There was a stick, apparently the handle of a golf club, in the bar and it is not shown by the evidence that it was used for any purpose in the operation of the bar as such. Plaintiff Stees on the night in question came into the bar and drank two or three glasses of beer and states that he gave the bartender a ten dollar bill, but received change for only five dollars, at which time there was some discussion and Brasier told Stees that in the event the cash register was 'long' on cash in the morning, he would refund the other five dollars to Stees. There seemed to be no particular feeling at the time of this discussion; however, subsequent thereto Brasier asked Stees to leave the bar, believing that he had had enough to drink. Without protest Stees started to leave and was part way to the door when Brasier came around the corner of the bar with the stick, hitting him on the head, knocking him to the floor and causing the injury of which complaint is made. This was close to the exit door. There was no dispute concerning the injuries received by Stees or the damages suffered therefrom. The only testimony in dispute is, that Brasier said that when Stees was leaving the bar he called Brasier a bad name, and that in hitting Stees it was not his purpose to maintain order in the bar, because Stees had never been troublesome and was not drunk at the time. Brasier further stated that when he was called the bad name, he thought that Stees was looking for trouble, not with the patrons in the bar, but with him personally, and stated that the reason he hit Stees was, 'It was a personal reason, Sir.' He further testified and answered the following interrogatories:

'Q. Did you have in mind any view of keeping order?

'A. No, Sir.

'Q. It was merely because he called you a dirty name, is that correct?

'A. That is exactly right.'

A disinterested witness, Renfroe, testified that he saw Stees and Brasier engaged in conversation but heard none of the words, then he heard Brasier say: 'Would you please pass out.' And again, 'Will you please pass out.' And that after Stees started to pass out, he heard Brasier say 'Don't call me a s. o. b.,' at which time Brasier came out from behind the bar.

Stees testified that he arrived at the bar a little before 7:30 on the evening in question and bought some beer and gave a ten dollar bill and receive change for five dollars and told the bartender that he had not received the proper change and was told that if the cash register indicated that it was 'long' the difference would be returned to him the next day. He then asked for more beer and the bartender refused to serve him. He turned and walked toward the door and the next thing he recalled he was lying on...