Sidebottom v. Aubrey

• Decision Date: 19 January 1937
• Citation: 101 S.W.2d 212,267 Ky. 45
• Parties: SIDEBOTTOM v. AUBREY.
• Court: Kentucky Court of Appeals

101 S.W.2d 212

267 Ky. 45

SIDEBOTTOM v. AUBREY.

Court of Appeals of Kentucky

January 19, 1937

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Clarence Sidebottom against Courtney Aubrey. From a judgment on a directed verdict in favor of the defendant, the plaintiff appeals.

Affirmed.

J Rivers Wright and Anton B. Dreidel, both of Louisville, for appellant.

Davis Boehl, Viser & Marcus, of Louisville, for appellee.

REES Justice.

Clarence Sidebottom brought an action against Courtney Aubrey to recover damages in the sum of $10,150, for personal injuries allegedly sustained by him on January 7, 1934, in Aubrey's place of business. Aubrey was engaged in the restaurant and soft drink business in Louisville. At the conclusion of the plaintiff's evidence, the court sustained the defendant's motion for a directed verdict in his favor, and the propriety of that ruling is the sole question presented on this appeal.

Plaintiff alleged in his petition that while he was a guest in the defendant's establishment he became intoxicated and fell into a stupor, and, while in this condition, another guest wantonly and maliciously injured him with the knowledge and approval of the defendant. The plaintiff testified that accompanied by a friend, he went into the defendant's place of business on the night of January 7, 1934, and purchased two pints of liquor. They had been drinking before they left plaintiff's home. They sat at a table provided for guests and drank the liquor with the result, as expressed by the witness, "That is what finished it up, and I don't know no more after that. When I drank that, that was all of it." He was asked again what happened while he was there, and replied: "Well, I played cards awhile until it hit me, is all I know, and I went out--I passed out." He never regained consciousness until the following morning, when he found himself at home in bed. He then learned for the first time that his right foot had been severely burned. Leonard Thornsberry was the only witness introduced by the plaintiff who was present when his injury was received. He testified that a large crowd was present in defendant's place of business; that plaintiff entered in an intoxicated condition, drank some whisky, and fell asleep. One of the men present rubbed something on plaintiff's foot and then set it on fire with a match. The defendant was in the room at the time, but was busy waiting on customers, and the witness was unable to state that he saw the transaction. Concerning the conduct of the other guests, the plaintiff was asked the following questions and made the following answers:

"Q. What was the condition prevailing at that time in respect to whether it was noisy? A. Noisy and going on is about all I know, --cutting up and going on.

"Q. Up to the time you last remember, state whether or not there were any boisterous or rowdy persons about? A. Well, cutting up, and a whole lot of noise and rallying around, and I passed out then."

Appellant insists that the foregoing evidence was sufficient to take the case to the jury. It was the duty of the appellee to exercise ordinary care for the safety of his patrons, but he was not an insurer of their safety. This rule applies to proprietors of places of public amusement, innkeepers storekeepers, and others who invite the public onto their premises. What constitutes ordinary care varies with the nature of the business and the use to which the premises are put, but it is a care commensurate with the particular circumstances involved in the given case. Ledington v. Williams, 257 Ky. 599, 78 S.W.2d 790; Waddel's Adm'r v. Brashear, 257 Ky. 390, 78 S.W.2d 31, 98 A.L.R. 553; Babb v. Crescent Amusement Co., 266 Ky. 382, 99 S.W.2d 199; River Excursion Co. v. Kuntz, 244 Ky. 587, 51 S.W.2d 911; Park Circuit & Realty Co. v. Ringo's Guardian, 242 Ky. 255, 46 S.W.2d 106; Noonan v. Sheridan, 230 Ky. 162, 18 S.W.2d 976; Bruner v. Seelbach Hotel Co., 133 Ky. 41, 117 S.W. 373, 19 Ann.Cas. 217. It is not the high degree of care imposed upon a common carrier. Ledington v. Williams, supra; Rahmel v. Lehndorff, 142 Cal. 681, 76 P. 659, 65 L.R.A. 88, 100 Am.St.Rep. 154. The rule is stated thus in 14 R.C.L. p. 508: "A proprietor of any public house of entertainment may be answerable for the act of one of his patrons as well as of his servant. He owes a duty to those that come to his place to protect...