Miller v. Staton, 36760
| Decision Date | 06 August 1964 |
| Docket Number | No. 36760,36760 |
| Citation | 64 Wn.2d 837,394 P.2d 799 |
| Parties | Roy L. MILLER and Mary Agnes Miller, husband and wife, Appellants, v. Ralph E. STATON and Jane Doe Staton, husband and wife, Leo Johnson and John Doe Johnson, husband and wife, and Hazel Staton, a widow, d/b/a The Pastime, Respondents. |
| Court | Washington Supreme Court |
George N. Apostol, Seattle, for appellants.
Hancock & Kohls, B. E. Kohls, Omak, Brethorst, Fowler, Bateman, Reed & McClure, Seattle, for respondents.
This is a personal injury action. It is now before this court on appeal for the second time. The facts and circumstances leading up to the injuries of the plaintiff-appellant Mary Miller are fully set out in Miller v. Staton (1961), 58 Wash.2d 879, 365 P.2d 333. Consequently, a brief sumary of the facts will suffice as prologue to a consideration of the assignments of error which seem meritorious to us in the present appeal.
On New Year's Eve of 1957, the plaintiff and her husband, in common practice with many other Americans, were engaged in greeting the New Year at a party in a place of public accommodation, the 'Pastime' Tavern, owned and operated by the defendants-respondents, at Omak, Washington. This particular New Year's Eve tavern party was open to the public. Obviously, it was not being held in a relatively swank and allegedly exclusive urban social club, but in a relatively popular social or gathering place in the expensive panoramic Okanogan country. The party, itself, was describable as crowded and exuberant--in fact, somewhat affected by the stock in trade offered for sale to the public by the licensed premises. The plaintiff was seated at a table with her back to the dance floor. About 2:20 a. m., a fight broke out between two gentlemen patrons of the establishment, who, after scuffling across the bar-room dance floor, albeit somewhat unrhythmically lurched into the plaintiff's chair, and, quite unsociably to say the least, knocked her to the floor. The two gentlemen patrons of the establishment continued to fight above, over, and around her somewhat prone form on the tavern floor. Plaintiff was kicked and stepped on during the process, and the serious injuries she sustained as a result of the fracas are the subject of the present lawsuit.
The plaintiff's claim and this action for damages are based upon (1) the alleged negligence of the defendants in failing to provide proper police protection sufficient to maintain order and preserve the peace, and (2) the acts of an employee of the defendant (a waiter), who stood by watching the fight and made no effort to stop it before the plaintiff was injured.
The jury found for the defendants, and the plaintiffs appeal, setting out multiple assignments of error. Of these, mention need be made only of a few, as we find that the case must be reversed, and a new trial ordered. Three instances of error--two involving misconduct of counsel and one an improper instruction--have had, we think, the over-all effect of denying the plaintiff a fair trial.
The first instance of misconduct on the part of counsel for the defense occurred in cross-examination of the plaintiff. Following a thread of relevancy, which somehow escapes this court, the plaintiff was questioned concerning her acquaintance with a man back in the year 1930. The following colloquy took place:
.
Defense counsel offers no excuse for such a line of questioning, apparently relying upon his withdrawal of the question upon the objection of plaintiff's counsel and the instruction by the trial court that the jury was to disregard it. While such an instruction is, of practical necessity, often considered as effective in removing the prejudicial impact of such improper questioning when...
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