Peck v. Gerber

• Decision Date: 14 July 1936
• Citation: 59 P.2d 675,154 Or. 126
• Parties: PECK v. GERBER et al.
• Court: Oregon Supreme Court

59 P.2d 675

154 Or. 126

PECK v. GERBER et al.

Supreme Court of Oregon

July 14, 1936

Department 1.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Action by Helen H. Peck against Fred A. Gerber and others, doing business under the name, style, and title of "The Rathskeller," to recover damages for personal injuries sustained while a patron of defendants' restaurant. Judgment for plaintiff, and defendants appeal.

Affirmed.

Guest or patron of restaurant dispensing intoxicating liquors and furnishing entertainment has right to rely on belief that he is in orderly house and that operator thereof personally or by his delegated representative is exercising reasonable care to maintain order.

Frank C. Howell, of Portland (Wilbur, Beckett Howell & Oppenheimer, of Portland, on the brief), for appellants.

L. C Binford and Wendell Gray, both of Portland (Binford & Weiss, of Portland, on the brief), for respondent.

KELLY Justice.

At about the hour of 9:30 o'clock p. m. of November 25, 1934, two young men had an altercation in defendants' restaurant. One of them was knocked over and upon plaintiff, who, as a patron of the restaurant, had been seated at a table there, but had arisen from her chair and was in the act of picking up her cloak in order to leave.

The part of the bone in plaintiff's heel called the sustentaculum cali of the os calcis and the bone of her ankle known as the astragalus were fractured; and fragments of bone were pulled out of the top of the astragalus and off of the top of the scaphoid.

The defendants were the proprietors of the restaurant, which was known as The Rathskeller. The two young men were patrons of the restaurant.

One of the young men who engaged in the fisticuffs was known as Leslie Gordon or Gordon Leslie. For brevity, we will refer to him as Gordon. For several years he had been a regular patron of The Rathskeller. He was a singer, and while patronizing the restaurant frequently sang at the instance of other patrons. There is nothing to indicate that he was ever an employee.

On the evening in question, after sitting at a table with two young ladies, who accompanied him, and after ordering refreshments for himself and his guests consisting of coffee and sandwiches, some one requested him to sing. This he did. Upon returning to the table he had left, he found another young man sitting in the chair which he had occupied before singing. A few words were exchanged, then blows, and plaintiff was injured as stated.

There is testimony tending to show that Gordon was hotheaded and belligerent when drinking; that upon one occasion he was requested to leave the room because of his belligerent conduct. The testimony indicates that there was more than one persuader using the power of persuasion upon him at that time.

There is testimony to the effect that Gordon frequently patronized The Rathskeller and that he had had a great many arguments while there. One witness testified that she did not know that Gordon had absolutely struck any one but he had attempted to do so; and that when he was drinking he was very quarrelsome.

Part of the time defendants were employees there and part of the time they were the proprietors; but during all of these occurrences, the testimony indicates, defendants were in such relation to the business that they would have had notice thereof. The special officer employed by defendants to preserve order in the restaurant testified that he was not yet on duty, but immediately after plaintiff was injured he made inquiry of the two young ladies who had accompanied Gordon as to what had transpired, and, upon being informed, said to defendant Bell that he was surprised that Gordon would do such a thing; and defendant Bell replied it was no surprise to him, for the reason that Gordon was hot-headed.

Defendant Bell was asked the purpose of employing a special officer, to which he answered, "For the protection of our customers" against "any trouble that might start where beer or alcoholic liquors are served."

The following questions and answers appear in said defendants' cross-examination:

"Q. In other words, do you consider that trouble is liable to start in The Rathskeller while they are drinking beer? A. Any place.

"Q. Any place. And that is why you have a special policeman? A. For protection."

There is a conflict in the testimony as to when the special officer should have reported for duty. Mr. Bell testified that the officer was supposed to be there at 9:30. The officer himself testified that he did not go on duty until 10. Said defendant also testified that between 10 p. m. and the ensuing 1 a. m., they served a little food but mostly beer.

There is testimony that Gordon was beligerent and stubborn while drinking.

Defendant Bell testified that at the time of the fight he was not in the room where the trouble occurred; but, being in an adjacent room, he knew that Gordon was there because he heard him singing.

The negligence charged consists of "admitting and inviting to The Rathskeller and permitting to remain there, Leslie Gordon, a person known to the defendants to have violent and disorderly propensities; permitting and allowing the disorderly conduct described herein; and failing to provide an employee or employees to maintain proper order and to exercise reasonable care for the safety, comfort and entertainment of the guests."

We are confronted with the question whether reasonable minds would differ upon the question whether the foregoing outline of testimony discloses negligence on defendants' part as charged in the complaint.

The jury must have determined that it was negligent on the part of defendants not to have a special officer or other employee on duty to preserve order while plaintiff was sitting at a table in close proximity to the one at which Gordon was seated or that defendant Bell knew Gordon was liable to conduct himself as he did, and, knowing that, said defendant was negligent in permitting Gordon to remain after singing.

We are not sitting as jurors, and hence are not deciding that defendants were negligent. We are called upon only to determine whether there is substantial testimony in the record tending to support the charge of negligence.

We are constrained to hold that there is such evidence before us.

Assignment of error No. 2 challenges the propriety of the following instruction: "But, if the preponderance of the evidence indicates to you that the place of business was a place where fights and disorderly conduct had occurred, you may draw the inference that it was a place where fights and disorderly conduct were likely to occur, and that the defendants must use every reasonable precaution to protect that plaintiff from an injury arising from such fights and disorderly conduct."

The complaint alleges that The Rathskeller is a place where wines and beer were on sale. The testimony of defendant Bell, as quoted above, indicates, and experience teaches, that in such a place fights and disorderly conduct are likely to occur. The instruction is not beyond the issues and the evidence. The complaint charges negligence in permitting and allowing the disorderly conduct described and failing "to provide an employee or employees to maintain proper order and to exercise reasonable care for the safety, *** of the guests." What would be negligence in failing to provide an employee or employees to afford safety for guests at such a place as The Rathskeller would not be considered negligence at a prayer meeting.

In a comparatively recent case Mr. Justice Rossman...