Romero v. Kendricks

• Decision Date: 06 January 1964
• Docket Number: No. 7296,7296
• Citation: 1964 NMSC 3,390 P.2d 269,74 N.M. 24
• Parties: Gregory C. ROMERO, Plaintiff-Appellee, v. Theo B. KENDRICKS, Saki Karavas d/b/a La Fonda Hotel, La Fonda Hotel and Saki Karavas, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 269

390 P.2d 269

74 N.M. 24

Gregory C. ROMERO, Plaintiff-Appellee, v. Theo B. KENDRICKS, Saki Karavas d/b/a La Fonda Hotel, La Fonda Hotel and Saki Karavas Defendants-Appellants.

No. 7296.

Supreme Court of New Mexico.

Jan. 6, 1964.

Rehearing Denied March 31, 1964.

Patricio S. Sanchez, Santa Fe, Sterling F. Black, Los Alamos, for appellee.

Seth, Montgomery, Federici & Andrews, Santa Fe, for appellant Saki Karavas.

Modrall, Seymour, Sperling, Roehl & Harris, Leland S. Sedberry, Jr., Albuquerque, for appellant Theo B. Kendricks.

CARMODY, Justice.

Appellee, following a jury trial, recovered judgment against his actual assailant and also against the bar operator and the claimed owner of a bar. Only the operator and the bar owner appeal.

Even though other serious problems are raised, the question of contributory negligence as a matter of law is decisive. In this connection, it must be kept in mind that we are not concerned with the right of recovery between appellee and his actual assailant, the non-appealing defendant, but only with the duty owed to a bar patron by the owner and the operator.

For ease in understanding, the parties will be referred to by their surnames--the appellee-plaintiff as Romero; the assailant-defendant as Ambrose; the appellants-defendants, the bar operator as Kendricks, and the bar owner as Karavas.

Romero, a salesman from out of town, after having spent some time in another bar, went to La Fonda Bar in Taos on a cold night in January, seeking, it seemed, to engage in such pleasurable diversions as are customary in that type of place. He was to be badly disappointed, for rather than conviviality and amusement, the events of the evening were to cause him, in addition to other difficulties, great physical pain and the dubious pleasure of long hospitalization. Upon entering the bar, Romero first ordered a beer from the barmaid, one Jane Gavas, and then went in the direction of the restroom. On the way, he passed the nickelodeon, put some money in it, and told Mrs. Ambrose, who was sitting with her husband, that she could select the music she wished. None of the parties had known each other before. Romero then went to the restroom and was followed by Ambrose, who made some very harsh remarks concerning Romero's offer to Ambrose's wife. The parties then went back into the bar and the words grew considerably more heated, so much so that the barmaid threatened to call the police if the men did not behave themselves. Somehow, she was prevailed upon not to do so, and Romero took a seat at the bar, some distance from where Ambrose and his wife were seated. Thereafter, a new argument apparently started, originating in Romero's offer to match for beer. The argument waxed hot, culminating in Ambrose calling Romero an 'S.O.B.' Romero then got up from his bar stool and went toward where the other man was. Romero testified, 'I was going to defend my honor.' Whether Romero went all the distance to Ambrose, or whether the parties met somewhere in-between, is somewhat in conflict, but, in any event, the men began scuffling. Romero initially grabbed Ambrose by the lapels and subsequently pushed him against the wall. It was at this time that Ambrose stabbed Romero several times with a knife. In the meantime, when the scuffle started, the barmaid ran out of the bar to advise her employer, Kendricks, who was in another bar in the same building, but some distance away. When Kendricks shortly arrived, the fight was over and Romero, with several cuts principally about the abdomen, was standing just inside or outside the door. However, no one noticed any blood. Kendricks refused to call an ambulance, and told Romero to go to the police station, about a block away, if he wanted help, because it could be obtained more speedily there. Romero started, but when about halfway, fell in the snow, where he remained until taken to the hospital by the officers who found him shortly after he fell.

Romero urges that both Kendricks and Karavas failed in their duty to protect him from the harmful acts of third persons, and, further, as to Kendricks, that there was negligent failure to render aid after the injury. In seeking to bolster his contention, Romero points to certain evidence which indicates that both of the parties displayed knives a short time prior to the unfortunate scuffle. However, this testimony avails him nothing, because a careful examination of the entire transcript fails to disclose any knowledge on the part of the barmaid that she ever saw the knives. It is also maintained that the argument between the two men should have been notice to the barmaid of the inherent danger in the situation. Nevertheless, here again, it is not shown that the argument, after it initially quieted down, was of such a consequence to alert the barmaid. Actually, the only other people in the bar, other than Romero, Ambrose and Ambrose's wife, were two female customers, and their attention was not attracted to anything occurring during the argument, they apparently not even being conscious of the same and only observing the final scuffle. The barmaid did not testify.

Thus, neither the testimony with respect to the knives, nor the argument preceding the final scuffle, can have any bearing on the liability of Kendricks and Karavas, there being no evidence of knowledge on the part of the agent of the danger involved. This is, of course, assuming, for this purpose, that the barmaid was the agent of both Karavas and Kendricks, although it is seriously contended by Karavas that he had no interest in the bar at the time of the occurrence. We do not reach this point, however, because of our determination that Romero's right to recover is barred as a matter of law.

We first take note of Coca v. Arceo, 1962, 71 N.M. 186, 376 P.2d 970, in which we defined the liability of an innkeeper for negligence. We there said:

'* * * Naturally, an innkeeper is not and cannot be an insurer of a guest or patron against personal injuries inflicted by another person on the premises, other than his servants or agents. Nevertheless, the proprietor of a place of business who holds it out to the public for entry for his business purposes, is subject to liability to guests who are upon the premises and who are injured by the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron. * * *'

Naturally, the innkeeper, to avoid liability, must use reasonable care, but to allow...