Pickens v. Westbrook, 4-3917.

• Decision Date: 17 June 1935
• Docket Number: No. 4-3917.,4-3917.
• Citation: 83 S.W.2d 830
• Parties: PICKENS v. WESTBROOK.
• Court: Arkansas Supreme Court

83 S.W.2d 830

PICKENS v. WESTBROOK.

No. 4-3917.

Supreme Court of Arkansas.

June 17, 1935.

Appeal from Circuit Court, Pulaski County, Second Division; Richard M. Mann, Judge.

Suit by Ed Westbrook against Arch Pickens. From a judgment for plaintiff, defendant appeals.

Reversed and cause dismissed.

House, Moses & Holmes and Harry B. Solmson, Jr., all of Little Rock, for appellant.

Charles Q. Kelley, Sam Rorex, and John L. Carter, all of Little Rock, for appellee.

BAKER, Justice.

Arch Pickens was operating the McGehee Hotel Coffee Shop, and G. G. Woods was employed by him as watchman, whose duties required him to remain at or near a door through which employees of the total and coffee shop entered or left the building. It was the duty of the watchman to see that employees upon entering the hotel registered by punching a time clock, and not to permit them to carry packages from the hotel upon leaving without having an O. K. or some mark of approval showing that the package had been investigated and inspected by some one in charge. This watchman performed the same duties for the hotel and for the coffee shop. The appellant here had the coffee shop under a lease and operated it as his own business to the exclusion of the hotel management. At certain times of the day it was the duty of Woods to operate an elevator for the carrying of freight in the hotel building. Near this rear door, used as an entry and exit by the employees. Woods had a chair and desk and, except while operating the elevator, kept check upon the employees as they might enter or leave the building. Outside of this back passageway was a receptacle for trash referred to as the trash barrel.

On August 15, 1934, a negro, Stewart, employed by Pickens, attempted to leave the rear door, when he was stopped by the watchman, who advised him that it was his duty to be at work for Mr. Pickens and closed the door, refusing to permit the negro to leave. The negro gave as his excuse that he was going to the trash barrel. Woods shut the back door refusing to allow Stewart to pass, and thereupon a controversy arose between him and the negro.

Stewart assumed a somewhat threatening attitude, but turned and went back downstairs to the place where he had been working, in or around the kitchen. Woods, being angry, followed the negro down the stairway, whereupon Stewart seized a bottle and finally a cleaver with which he faced Woods assuming an air of defense. Woods left the basement of the hotel and, instead of returning to his place of employment, went across the river to North Little Rock, where he procured a pistol and with it returned to the hotel. Having armed, he went to the boiler room in the basement following or hunting Stewart. Upon entering the boiler room he found or saw the appellee, Ed Westbrook, who was standing near the engineer's desk reading a paper. The engineer, Johnson, upon observing Woods' highly nervous state, seized him by the arm, but not in time to prevent the firing of two shots. These struck the appellee, inflicting flesh wounds through the thighs.

The appellee, though not dangerously wounded, was quite painfully so, and by reason thereof was confined to the hospital for fifteen days and at his home for a short time and was unable to work for another thirty days. He sued Pickens and recovered a judgment for $1,200. The appeal is from this judgment.

Several questions are presented upon this appeal for our determination. The first one of these challenges the sufficiency of the evidence to support or sustain the judgment. If that be settled in favor of the appellant, the other questions pass out of the case.

Stewart, the employee with whom Woods had the controversy, was not called as a witness.

Plaintiff's testimony related rather to the extent and effect of the injuries than to matters showing the liability of the appellant therefor. He did, however, testify that Stewart had worked at the coffee shop for about a year, and that silver and sandwiches had been missing and Stewart was suspected. But a short time prior to the shooting, Mr. Pickens had called a meeting of his employees and discussed with them the fact that petty thievery had been going on and it would have to stop. Advised the employees that he had instructed Mr. Woods to stop any one who was leaving the building and to see that any packages that employees were carrying had an O. K. That Woods had the authority to stop any one who was taking property from the coffee shop.

Mr. Johnson testified that Woods' duties were to stop any one who was taking packages out of the building without an O. K., and explained that Woods' desk was about fifteen feet from the rear door and a short distance from the stairway that leads down into the coffee shop and boiler room in the basement. That a garbage barrel was kept in another room near the one where Woods' desk was located.

Johnson was an eyewitness to the shooting. The shooting took place in the boiler room, where the employees went to get drinking water. Woods came into this boiler room and was very nervous. That Stewart had just run into the room and had hidden himself behind a switchboard. His opinion was that Woods accidentally shot Westbrook; that Woods was so highly nervous and jerky that he could hardly walk.

Pickens testified that Woods watched his employees, in return for which he gave Woods his meals. William Stewart had been employed as a kitchen helper. He had at one time caught Stewart selling sandwiches to the boys in the barber shop and had discharged him. That he had lost some silver from the coffee shop.

He said also that he had meetings once or twice a month with his employees to discuss methods of improving the service and preventing loss of property. He had authorized Woods to stop his employees to see that they did not carry out packages that had not been O. K.'d. He did not tell Woods specifically to do anything when an infraction of the rules occurred. He had not authorized Woods to carry or have a gun or pistol on the premises. He did not know that he had one. He had known Woods for about ten years. That he believed him to be about 70 or 75 years of age. That he was a very good man but of nervous temperament. He knew that Woods had a gun at his home. Woods' job was to drive the elevator and watch the employees of the hotel and see that they did not carry out packages not properly marked.

Jennings, called as a witness of the defendant, testified as follows: That Woods' duties were to watch the employees. He was supposed to see that all packages were O. K. If not, he was supposed to take the package and get an O. K. from the proper department. At the noon hour he relieved the elevator operator and worked from 11 to 12. Asked if Woods was authorized to have a pistol or gun, he said: "No, the duties he performs is not of a serious nature. Any employee that should want to resist giving him a package or letting him inspect a package, he could notify me. That position does not require anyone...