Priewe v. Bartz

CourtSupreme Court of Minnesota (US)
Citation249 Minn. 488,70 A.L.R.2d 621,83 N.W.2d 116
Docket NumberNo. 36964,36964
Parties, 70 A.L.R.2d 621 Wilbert PRIEWE, Respondent, v. Richard BARTZ et al., Defendants, Carl Mogen and Mildred Smallbrock, Appellants.
Decision Date10 May 1957

Page 116

83 N.W.2d 116
249 Minn. 488, 70 A.L.R.2d 621
Wilbert PRIEWE, Respondent,
Richard BARTZ et al., Defendants, Carl Mogen and Mildred
Smallbrock, Appellants.
No. 36964.
Supreme Court of Minnesota.
May 10, 1957.

Page 117

Syllabus by the Court

[249 MINN 488] 1. The operator of an establishment engaged in the sale of beer and liquor owes a duty to those coming upon his premises to exercise reasonable care to see to it that a patron is not injured by vicious or drunken individuals whom he permits to come upon his premises and whose conduct he might reasonably have anticipated.

2. The presence of an intoxicated person upon the premises of a beer or liquor establishment immediately exposes the proprietor to the hazards of liability resulting from the unpredictable conduct of such person, and the proprietor is obligated to do something more than to admonish such a person to refrain from disorderly acts. There must be affirmative action to maintain order on the premises by demanding that such person leave or by calling the authorities to enforce such demand.

3. In the absence of an express request or exception to the charge of the trial court, this court on appeal will not consider an alleged error based on failure to give a negative cautionary instruction which does not relate to a fundamental or controlling principle of law.

4. Where one of the defendants was in default it was proper for the court to

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instruct the jury that a verdict should be rendered in favor of the plaintiff as to him. The statement of the trial court that 'the plaintiff is entitled to a verdict against someone in this case' viewed in the context of the instruction as a whole was not misleading or prejudicial in view of the fact that the court further instructed the jury that it could find against the defendant in default alone or joinly against all defendants and submitted and explained to the jury alternative forms [249 MINN 489] of verdict, one against the defendant in default alone and the other against all of the defendants.

James T. Spillane, Rochester, for appellants.

F. J. O'Brien and R. V. Ehrick, Rochester, for respondent.

MURPHY, Justice.

Action to recover damages for personal injuries sustained by the plaintiff while in the tavern of the defendant Carl Mogen by reason of the alleged negligence of said defendant and his employee, defendant Mildred Smallbrock, in failing to protect the plaintiff from an assault by an intoxicated person who was permitted to be on the premises. There was a verdict for the plaintiff and the defendants have appealed from an order denying their alternative motion for judgment or for a new trial.

The defendant Richard Bartz, who was alleged to have committed the assault, was properly served but failed to appear for trial and is in default. On the theory that the defendants Mogen and Smallbrock negligently failed to maintain order and sobriety in their place of business, the plaintiff contends they are liable for the actions of Bertz. The jury returned a verdict against all three defendants for $20,000. Defendants Mogen and Smallbrock have appealed.

Viewing the evidence in the light most favorable to the verdict (1 Dunnell, Dig. (3 ed.) § 415b) the jury could have accepted the following facts: The plaintiff, Wilbert Priewe, and his friend, Jesse Denure, both from Wisconsin, were in Rochester to obtain veterinary[249 MINN 490] assistance for the plaintiff's pet lion. They entered defendant Mogen's bar about 8:30 p.m. on the day of the assault. Mogen was present when they entered but departed shortly thereafter, leaving the premises in charge of the defendant Miss Smallbrock, a barmaid. Two other girls were present. Shortly after Mogen's departure, the defendant Bartz entered the premises accompanied by one Vikkers. There was some conversation between those who were present at the bar. It appears that the plaintiff had some talk with Vikkers. Bartz, in his intoxicated condition, took offense at something he thought plaintiff said or did at this time. Bartz shouted: 'Leave my buddy alone' and in obscene and abusive language invited plaintiff to go outside and fight. During the verbal exchange which followed between the plaintiff and Bartz, Miss Smallbrock told them to 'take it outside.' Bertz then walked to the back door which entered upon the alley and, finding that the plaintiff did not follow him, stood at the doorway for a couple of minutes calling to the plaintiff and challenging him to come out and fight. When he realized that he was being ignored by the plaintiff, he returned to the room and took up a position at the center of the bar where the others were either seated or standing. He then took from the bar a glass of beer which apparently had been previously served to him. After some interval the plaintiff in an attempt to mollify Bartz offered to buy him a glass of beer. Bartz responded by throwing the glass and contents into the face of the plaintiff as a result of which the plaintiff's eye was cut. The plaintiff's companion, Denure, immediately suggested to Miss Smallbrock that she call the police. The police station was located directly across the streeet from the establishment. Miss Smallbrock refused,

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saying that the police were never called there. A physician was called and plaintiff was taken to a hospital. As a result of the assault plaintiff lost the sight of one eye.


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  • Kline v. 1500 Massachusetts Avenue Apartment Corp., 23401.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 6, 1970
    ...and comfort of his guests varies with the grade and quality of the accommodation offered by the hotel.6 The panel cites the note in 70 A.L.R.2d 621 (1960) in support of its claim. That note revolves around a Minnesota case deciding that the operator of a beer establishment owes a duty to it......
  • Connolly v. Nicollet Hotel, 37180
    • United States
    • Supreme Court of Minnesota (US)
    • February 27, 1959 the common carrier are applicable alike to them.' See, also, Windorski v. Doyle, 219 Minn. 402, 18 N.W.2d 142; Priewe v. Bartz, 249 Minn. 488, 83 N.W.2d 116. Although it appears from the record that the defendants doubted the wisdom of permitting free liquor and beer to be served upon th......
  • Rosensteil v. Lisdas
    • United States
    • Supreme Court of Oregon
    • July 16, 1969
    ...'somewhat greater care' than those who don't. The Annotation in 70 A.L.R.2d 628 following the report of Priewe v. Bartz, 249 Minn. 488, 83 N.W.2d 116, 70 A.L.R.2d 621 (1957), collects more recent cases. These agree with the Comment in 106 A.L.R. See also Connolly v. Nicollet Hotel, supra, s......
  • Alholm v. Wilt
    • United States
    • Supreme Court of Minnesota (US)
    • October 10, 1986
    ...exists no duty to use "the highest degree of care." Filas v. Doner, 300 Minn. 137, 218 N.W.2d 467, 469 (1974), Priewe v. Bartz, 249 Minn. 488, 491, 83 N.W.2d 116, 119 (1957). Even in Sylvester v. Northwestern Hospital of Minneapolis, 236 Minn. 384, 386-88, 53 N.W.2d 17 (1952) (which was not......
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