Vrabel v. Acri

• Decision Date: 23 January 1952
• Docket Number: No. 32646,32646
• Citation: Vrabel v. Acri, 156 Ohio St. 467, 103 N.E.2d 564, 30 A.L.R.2d 853, 46 O.O. 387 (Ohio 1952)
• Parties: , 30 A.L.R.2d 853, 46 O.O. 387 VRABEL v. ACRI.
• Court: Ohio Supreme Court

Page 467

156 Ohio St. 467

103 N.E.2d 564, 30 A.L.R.2d 853, 46 O.O. 387

VRABEL v.ACRI.

No. 32646.

Supreme Court of Ohio.

Jan. 23, 1952.

Syllabus by the Court.

1.Upon a showing that a partnership or joint enterprise exists, each member of such project acts both as principal and agent of the others as to those things done within the apparent scope of the business of the project and for its benefit.

2.Where one member of a partnership or joint enterprise commits a wrongful and malicious tort not within the actual or apparent scope of the agency or the common business of the particular venture, to which the other members have not assented, and which has not been concurred in or ratified by them, they are not liable for any harm thereby caused.

3.Where a joint proprietor of a business is excluded by the other proprietor from any voice or control in its management, and where the excluded proprietor does not know or have good reason to believe that the proprietor in control is a dangerous individual and prone to assault patrons of the business, the excluded proprietor may not be held accountable for a malicious and unprovoked assault on a patron by the proprietor in control, on the theory that the excluded proprietor was negligent in failing to take reasonable means and precautions to protect patrons from such hazard.

Stephen J. Vrabel filed his amended petition in the Court of Common Pleas of Mahoning County against Florence Acri, praying for damages in the sum of $25,000.

The material allegations of such petition are that defendant was one of the proprietors and keepers of a tavern known as the Acri Cafe, in the city of Youngstown, where whiskey, wine and beer were sold to the public by the drink; that shortly after 10 p. m., on February 17, 1947, plaintiff and a friend entered such cafe as customers to buy and drink alcoholic beverages; that one Michael Acri was then in charge of the cafe; that he, to defendant's knowledge but not to plaintiff's was a person of a quarrelsome vicious and dangerous disposition, with a propensity to assault and injure others, and was suffering from a mental derangement of long standing; and that there was no employee in such cafe to maintain proper order and protect customers from assault and injury by Michael Acri.

The amended petition further alleges that at the place and time mentioned, when plaintiff and his friend were seated at the bar imbibing alcoholic beverages, Michael Acri, who was standing behind the bar, suddenly 'drew out a 38 caliber gun' and without provocation or justification shot plaintiff's companion and then physically attacked plaintiff, causing him certain described injuries.

Such petition then continues in the following language:

'That the defendant was guilty of negligence which was the proximate cause of the plaintiff's injury, in the following respects:

'(1) In and about permitting an unfit and unsuitable person to be in charge of said tavern, as aforesaid;

'(2) In and about permitting the disorderly conduct in said tavern, as aforesaid;

'(3) In and about failing to provide an employee to maintain and to preserve peace in said tavern and to protect the safety and comfort of the plaintiff as a patron, as aforesaid;

'(4) In and about permitting the plaintiff to be assaulted, maltreated and injured, as aforesaid;

'(5) In and about failing to exercise ordinary care for the plaintiff's protection, as a patron of her tavern, as aforesaid.'

After a demurrer to the amended petition was overruled, defendant filed an answer in which she avers that she had had no connection with the operation and management of the Acri Cafe since September 18, 1946; that on such date she was the wife of Michael Acri and left him at that time, because of his aggression, and established a residence of her own; that while she was living with Michael Acrishe, at times, assisted in operating the cafe, especially when Michael Acri was absent due to illness; that she owns the land and building where such cafe is situated; and that such property was acquired through the joint efforts of herself and Michael Acri.

Following a general denial of the allegations of the petition, the answer continues with the recitations that at the times mentioned in the petition all licenses for the sale of alcoholic beverages in the Acri Cafe were obtained by Michael Acri and were held in his name alone; that from September 18, 1946, defendant was excluded by Michael Acri from the cafe and from any participation in the operation of the business there conducted; that such cafe was operated by Michael Acri solely on his own behalf and for his own benefit; and that on September 24, 1946, defendant instituted an action for divorce against Michael Acri and subsequently secured a decree of divorce.

For a second defense the answer avers 'that plaintiff's amended petition does not state facts which show a cause of action against this defendant.'

Issues were joined by a reply which contains a denial of all allegations of the answer 'except such allegations as are consistent with and are admissions of allegations contained in the plaintiff's petition.'

In the trial of the action before the court and a jury, defendant moved for a directed verdict at the close of plaintiff's case in chief and again at the close of all the evidence, both of which motions were overruled.

A verdict was returned for plaintiff in the sum of $7,500.Defendant's motion for judgment notwithstanding the verdict was overruled and judgment was entered in accordance with the verdict.

After the overruling of defendant's motion for a new trial, an appeal on questions of law was taken to the Court of Appeals, which court affirmed the judgment below.

This court allowed the motion to certify the record, and the cause is now here for disposition on the merits.

Hammond, Hoyt & Hammond, Youngstown, for appellant.

John A. Willo, Homer E. Carlyle and I. Freeman, all of Youngstown, for appellee.

ZIMMERMAN, Judge.

It will be noted that the amended petition seeks to fix the liability of defendant to plaintiff for his injuries on the theory of negligence.Plaintiff contends that defendant and Michael Acri were joint proprietors of the Acri Cafe and that defendant, as a joint proprietor, was negligent in failing to exercise ordinary measures and precautions to protect patrons of the cafe from unprovoked attacks by Michael Acri, a person known to the defendant to be vicious and irresponsible.

The evidence presented on the trial supports the claims in the amended petition as to the manner in which plaintiff was injured.It shows that, while plaintiff and his companion were sitting quietly at the bar of the Acri Cafe on the night of February 17, 1947, partaking of alcoholic beverages, Michael Acri, for no apparent cause, shot and killed plaintiff's companion and afterward viciously attacked plaintiff.Evidence was also introduced which might justify the conclusion...