McFadden v. Bancroft Hotel Corp.
| Decision Date | 26 January 1943 |
| Citation | 46 N.E.2d 573,313 Mass. 56 |
| Parties | EDWARD L. MCFADDEN v. THE BANCROFT HOTEL CORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 9, 1942.
Present: FIELD, C.
J., DONAHUE, QUA COX, & RONAN, JJ.
Negligence, Hotel Intoxicated person, Contributory, Assumption of risk. Practice, Civil, Ordering verdict.
A finding of negligence of the defendant was warranted in an action against the proprietor of a hotel by a guest for injuries sustained when the plaintiff without provocation was assaulted by another guest, who was intoxicated, at a drinking party in the crowded grill room of the hotel, where there was evidence that agents and employees who had been hired by the defendant to preserve law and order failed to exercise ordinary care to prevent such assault after observing quarrelsome conduct on the part of the intoxicated guest for a considerable time before the assault.
Evidence of the conduct of one who, accompanied by his wife, entered a crowded grill room of a hotel where on an evening of a convention a drinking party was in progress, did not require a ruling as a matter of law that he was precluded from maintaining an action against the proprietor of the hotel for injuries sustained when, owing to a failure of the proprietor to exercise care for his protection, another guest, who was intoxicated, assaulted him without provocation.
Exceptions by a defendant to a denial of his motion that a verdict be ordered in his favor at the trial of an action in contract or tort with a declaration in three counts, and to a refusal to enter a verdict in his favor under leave reserved after a general verdict for the plaintiff had been recorded, were overruled where there was evidence warranting a verdict for the plaintiff on at least one of the counts.
TORT OR CONTRACT. Writ in the Superior Court dated June 26, 1937. The declaration was in three counts, the first two being in tort and the third in contract. The allegations of the first count were in substance that the plaintiff, while a guest of the defendant at its hotel, was viciously assaulted by reason of negligence of the defendant, its agents, servants, and employees "in failing to exercise that degree of care which it owed him as a guest." The allegations of the second count were merely that the assault was by reason of negligence of the defendant, its agents, servants, and employees.
The case was tried before Morton, J. The defendant moved that a verdict in its favor be ordered. The motion was denied. The jury returned a general verdict for the plaintiff which was recorded subject to leave reserved. A motion by the defendant that a verdict for it be entered under leave reserved was denied. The defendant alleged exceptions.
J. M. Graham, for the defendant.
A. R. Sisson, (W.
J. Lee with him,) for the plaintiff.
COX, J. A military organization held its annual convention in Worcester in June 1936, with headquarters in the hotel that the defendant operates. The convention opened on the twenty-sixth and in the early evening of the twenty-seventh, the plaintiff, while in the grill room of the hotel, was assaulted by one Cunningham, a guest of the hotel, who had arrived on the twenty-fifth. The grill room is about ninety by ninety feet with a normal seating capacity of one hundred and fifty which had been reduced for the convention period to one hundred. The bar is thirty-two feet long. It could have been found that in preparation for the convention, the defendant hired six private detectives, and six local police officers, and that at the time of the assault, at least five of them were stationed around the grill room. The superintendent of detectives of the Worcester police force was also present, "all over the hotel." On Saturday evening there was a capacity crowd of one hundred fifty people in the grill, which, besides filling every seat, was crowded around the bar and back into the space that had been created by the removal of tables. No food was being served. The crowd was noisy and drinking.
The detectives had been instructed that if there were any fights, they were to "break them up"; that they were to assist in keeping things so that there would be no trouble; "undesirables, we asked . . . to leave and people who were making noise, we would quiet . . . down; and the general job was to keep trouble from brewing around the place."
Men were stationed in different places, "and one of the places was the grill room."
Cunningham, the admitted assailant, arrived at the hotel on Thursday, the twenty-fifth, and engaged two rooms so that he could do some entertaining. Much of the time through Thursday, Friday and Saturday he acted as bar tender in his suite, drinking occasionally when he was serving "the boys," and on Friday he dispensed a case of liquor, "exactly three hundred fifty-four drinks." He started to entertain again on Saturday, but did not have many visitors. The convention parade was on Saturday afternoon. Cunningham was described as being about six feet in height, and as weighing two hundred pounds, "a pretty big man," and as wearing a white gabardine suit on Saturday evening. One witness, whose attention was attracted to him in the grill room by reason of his white suit, testified that Cunningham was "a pretty big man, and was kind of strutting around and took up a good deal of room." The defendant's assistant manager observed him in the grill room about an hour before the assault and for an appreciably long time. The grill room head waiter saw him, as did one of the detectives, who observed him in his white suit moving about the room, and who testified that Cunningham had been drinking. He also was observed by the superintendent of detectives before the assault.
The plaintiff went to the grill room with his wife about 5:45 P.M. They were taken to a table in the center of the room and ordered drinks. Each had one drink only. About twenty minutes after they arrived, the plaintiff noticed Cunningham, who was standing at a table about fifteen feet away, "hollering, and [doing] a lot of cursing . . . swearing at someone." He could be heard "above the rest." One of the men at that table got up and said something to Cunningham who pushed him back in his seat saying, "Sit down you son of a gun." The man stayed down. This incident was observed by one of the detectives. When this occurred, two waiters came running over and "caught Mr. Cunningham" and there was talk, and two men in civilian clothes also came over and talked for a few minutes. The plaintiff thought there was going to be a fight. After this affair, Cunningham was seen walking around, "swaying around" and going from table to table.
About an hour after the first incident, Cunningham was seen at another table arguing with a man. One of the men at the table jumped up and, when he did, Cunningham " ...
To continue reading
Request your trial