Miller v. Staton, 35329

• Decision Date: 05 October 1961
• Docket Number: No. 35329,35329
• Citation: 58 Wn.2d 879,365 P.2d 333
• Parties: Roy L. MILLER and Mary Agnes Miller, husband and wife, Respondents, v. Ralph E. STATON and Jane Doe Staton, husband and wife, Leo Johnson and Jane Doe Johnson, husband and wife, and Hazel Staton, a widow, d/b/a The Pastime, Appellants.
• Court: Washington Supreme Court

Page 879

58 Wn.2d 879

365 P.2d 333

Roy L. MILLER and Mary Agnes Miller, husband and wife, Respondents, v. Ralph E. STATON and Jane Doe Staton, husband and wife, Leo

Johnson and Jane Doe Johnson, husband and wife,

and Hazel Staton, a widow, d/b/a The

Pastime, Appellants.

No. 35329.

Supreme Court of Washington, En Banc.

Oct. 5, 1961.

George N. Apostol, Seattle, for respondents.

Brethorst, Fowler, Bateman, Reed & McClure, Seattle, Frank W. Payne, B. E. Kohls, Omak, for appellants.

HUNTER, Judge.

This action arose as a result of personal injuries sustained by the plaintiff, Mary Agnes Miller, when she was knocked down by two patrons who were fighting in the defendants' tavern. Judgment was entered upon a jury verdict awarding the plaintiff $25,743.37. The defendants appeal.

On New Year's Eve, 1957, the plaintiff, with her husband and friends, went to the tavern of the defendants (appellants) in Omak, Washington, about 9:30 or 10:00 o'clock. They were seated at a table next to the dance floor where they drank beer during the evening, continuing until about 2:20 in the morning when the fight occurred.

The defendants first contend there was insufficient evidence to sustain a finding of negligence. The testimony on this issue is in sharp dispute; however, the evidence most favorable to the plaintiff (respondent) is as follows:

The dance floor was crowded; there were approximately two hundred people in the tavern, which was designed to accommodate a maximum of eighty-four people. Quite a few of the patrons were under the influence of alcohol; some were staggering. There previously had been two fights, or near fights, that evening. Also, while under the influence of alcohol, the two participants in the fight which caused the injuries to the plaintiff, had caused a disturbance earlier that evening, and either one of the proprietors or one of the waiters had cautioned them.

Mary Kusler, who was seated at the table with the plaintiff, testified on cross-examination as follows concerning the fight which caused the plaintiff's injuries:

'Q. From the time you first observed these men fighting until your table was knocked over, how much time elapsed? A. Well, that would be hard to say. A matter of minutes.

'Q. Now a matter of minutes. A minute is sixty seconds. A. I know that.

'Q. Do you mean it took you a matter of minutes to get up from behined your table and get out of the way before it was knocked over? A. It could have. I was scared. * * *'

Edna Reeves, who was sitting at a table behind the one at which the plaintiff was sitting, testified on direct examination:

'Q. And tell the jury now, in your own words, that you were doing just prior to the fight and what happened during the fight the best you can. A. Well, I was sitting facing the dance floor and I don't know where the fight started. When I first saw it they were approximately in the middle of the room. There was dancing going on at the time and I saw these two men hitting each other and they gradually worked their way across to the left side--it would have been to my left, and this one fellow had the other just partially bent over the booth, and they, of course, kept hitting each other; and he more or less gained his balance, the one that was bent over the booth and they fought at an angle towards my direction, only Mrs. Miller's table was just in front of me only it seemed like the corner of her table and chair somehow as it struck--it just looked like one solid blow--and it threw her backwards, and I would say it sent her about three or four feet back, and they were still fighting * * *'

On cross-examination, Edna Reeves testified:

'Q. And then you said they gradually worked their way over to what would have been your left, against the booths. A. Yes.

'Q. Well, what do you mean by gradually? A. Well, one blow didn't send him there. They struck each other several times before they finally--or were to my left as I stated. * * *

'Q. How many swings would you say that they took at one another from the time you first observed the fight? A. I wouldn't say.

'Q. Well, you said they were swinging. Do you mean--A. Well, if you watch a fight you don't count the blows.

'Q. Well, would you say there were more than five? A. Certainly.

'Q. More than ten? A. Yes.

'Q. More than fifteen? A. I couldn't say. * * *'

The general rule followed by this court is that an innkeeper or restaurant owner owes the duty to his guests to exercise reasonable care to protect them from injury at the hands of a fellow guest. Gurren v. Casperson, 1928, 147 Wash. 257, 265 P. 472; Peck v. Gerber, 1936, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996; Thomas v. Bruza, 1957, 151 Cal.App.2d 150, 311 P.2d 128.

Applying this rule as to the duty of care owed by the defendants to the plaintiff in considering the foregoing evidence, the jury was entitled to conclude that, by the exercise of reasonable care for the safety of their patrons, the defendants in the operation of their tavern knew or should have known a fight was ensuing in time to have stopped the fight thereby avoiding the resulting injuries sustained by the plaintiff. The trial court was correct in denying the defendants' motion for a directed verdict on the grounds of insufficiency of the evidence.

The defendants assign error to the refusal by the court to give their proposed instruction 'K.' We find the rule of law proposed was adequately covered by other instructions and, therefore, the defendants were not prejudiced. Kidwell v. School Dist. No. 300, 1959, 53 Wash.2d 672, 335 P.2d 805.

The defendants assign error to the court's instructions Nos. 11 and 14, for the reason they overemphasize the duty of the defendants to preserve order and prevent injury to their guests. The instructions are in some respects repetitious, but not to the extent of preventing the jury's fair understanding of the law of the case; therefore, they were not prejudicial.

The defendants further contend the trial court erred in giving instructions Nos. 11 and 14, for the reason that when read alone they place upon the defendants the duty of an insurer of the plaintiff's safety. Instructions may not be singled out without reference to the other instructions. Lozan v. Fraternal Order of Eagles, Aerie No. 3, 1959, 53 Wash.2d 547, 335 P.2d 4. Instructions must be read in the light of the other instructions given. Bell v. Bennett, 1960, 56 Wash.2d 780, 355 P.2d 331. Considering the instructions in this manner, it is clear the court went no further than to place upon the defendants the duty to exercise reasonable care for the safety of their patrons; however, we do not approve the form of the instructions. The objections could have been avoided by a more careful drafting by the scrivener.

The defendants further contend the trial court erred in giving instructions Nos. 14 and 15, since this removed from the jury's consideration the question of causal relationship between the defendants' negligence and the resulting injury to the plaintiff. They argue that other instructions relating to proximate cause may not be considered since numbers 14 and 15 are formula instructions and, in such instances, all elements of proof essential to one's liability must be contained in each instruction, citing Donner v. Donner, 1955, 46 Wash.2d 130, 278 P.2d 780. This objection to the instructions was not brought to the attention of the trial court. No exceptions having been taken on this ground, it cannot be raised for the first time on appeal. State v. Cogswell, 1959, 54 Wash.2d 240, 339 P.2d 465.

The defendants contend the trial court erred in admitting into evidence, over objections, testimony concerning fights that occurred in defendants' tavern in the fall of 1957. We disagree. One of the issues relating to the exercise of reasonable care for the guests' protection was whether additional policing was necessary on this evening, in view of the defendants' knowledge of the likelihood of boisterous conduct, disorder, and fights on the occasion of a New Year's Eve celebration, with the attendant imbibing of intoxicants. Evidence of conduct of patrons on prior occasions is admissible to show similar conduct could reasonably have been anticipated by the defendants during a subsequent festive evening such as New Year's Eve, which would require policing reasonably adequate for their guests' protection. The objectionable evidence was admissible for this purpose. McCormick on Evidence, § 167 (1954); See Tonning v. Northern Pac. Ry., 1935, 180 Wash. 374, 39 P.2d 1002.

The defendants contend the court erred by admitting into evidence testimony concerning the practices of another establishment, the Eagles Lodge in Omak, as to policing and keeping order. We agree. Although, where negligence is in issue, the usual conduct or general custom of others under similar circumstances is relevant and admissible, such custom may not be established by evidence of conduct of single persons or businesses. 65 C.J.S. Negligence § 232. Therefore, the evidence as to the custom of policing in the bar of the Eagles Lodge was inadmissible and prejudicial to the fair consideration by the jury of the adequacy of care exercised by the defendants for their patrons' safety.

The defendants further contend the court erred in admitting into evidence plaintiff's exhibits Nos. 24 and 25, which were medical bills incurred by the plaintiff for treatment of a herniated diaphragm and a duodenal ulcer, for the reason there is no showing they were caused by the accident.

The record discloses these conditions of the plaintiff developed more than a year after the accident in question. The medical evidence most favorable to the plaintiff is as follows: Dr. Gordon B. O'Neil, a specialist in the field of orthopedic surgery, testified:

'Q. And did you form any conclusions as a result of your most recent examination? A. Yes. * * * The patient has developed a certain amount of anxiety because of this pain, I...