Weihert v. Piccione

• Decision Date: 09 October 1956
• Citation: 273 Wis. 448,78 N.W.2d 757
• Parties: Eleanor WEIHERT, Appellant, v. Frank PICCIONE, Respondent. Lawrence WEIHERT, Appellant, v. Frank PICCIONE, Respondent. Donald TISCHER, Appellant, v. Frank PICCIONE, Respondent.
• Court: Wisconsin Supreme Court

Page 757

78 N.W.2d 757

273 Wis. 448

Eleanor WEIHERT, Appellant, v. Frank PICCIONE, Respondent.

Lawrence WEIHERT, Appellant, v. Frank PICCIONE, Respondent.

Donald TISCHER, Appellant, v. Frank PICCIONE, Respondent.

Supreme Court of Wisconsin.

Oct. 9, 1956.

Fisher & Fisher, Janesville, for appellants.

Jeffris, Mouat, Oestreich, Wood & Cunningham, Janesville, for respondent.

STEINLE, Justice.

The learned trial court granted the defendant's motions for nonsuit on ground that sufficient evidence had not been introduced at the trial to support the averments of the complaints. The challenge here is to such ruling.

A motion for a nonsuit is equivalent to a demurrer to the evidence. In passing upon such motion, it is incumbent upon the court to view the evidence in a light most favorable to the plaintiff, and the court must give the plaintiff the benefit of the most favorable inferences that can reasonably be deduced therefrom. City of Lake Mills v. Veldhuizen, 1953, 263 Wis. 49, 56 N.W.2d 491.

The evidence of record, most favorable to the contention of the appellants, is as follows: 'The defendant, Frank Piccione, owned and operated a restaurant in the industrial section of Janesville which was open for business 24 hours a day. The premises consisted principally of a counter room with 12 stools for patrons, a main dining room seating about 24 people, and a kitchen. Intoxicants were not sold in the establishment. No guard was employed there. The plaintiff, Eleanor Weihert, had been employed as a waitress at the defendant's restaurant for a period of six weeks previous to October 16, 1953. She had worked on October 16, 1953 from 11:30 a. m., until 7:30 p. m., and later that night while at home, suggested to her husband, the plaintiff Lawrence Weihert, and to some guests who were visiting at her home,--Mr. and Mrs. Jesse Wells (sister and brother-in-law) and the plaintiff, Donald Tischer (an acquaintance),--that they all go to the defendant's restaurant and have some chicken. The group left the Weihert home for the restaurant, but before arriving there, drove to a tavern outside of the city where they each had a bottle of beer just before closing time. At the restaurant they took seats at a table near the center of the dining room. The restaurant was quite well filled with people. Another man and woman joined the Weihert party at their table. One John Powers was in a group of four (two men and two women) seated at a table next to where the Weihert party sat. Events occurring at the restaurant thereafter were described by Eleanor Weihert in her testimony as follows:

'I noticed nothing about the people who were in there at the adjoining table east of us which was occupied by Mr. Powers and his group. They were talking loud. I wasn't really paying any attention to it because I was talking. We had been seated at our table for about 10 minutes when the waitress came to take our order--perhaps it was longer, possibly less. I was not conscious of any talking at the Powers table during this period of time until Powers grabbed Mr. Tischer. Prior to the time that Powers grabbed Tischer I was engaged in conversation with Mrs. Sowles. When Powers started talking so loud and grabbed Tischer I turned to look, and that is when it started--when he started. I observed Powers beating Tischer's head against the board and hitting him in the head. Before Powers grabbed Tischer I did not hear any conversation from anybody in the party directed to Powers telling him to quiet down. We had been seated for approximately 10 minutes before Powers grabbed Tischer--a little more or less. It was probably five or ten minutes before the waitress came around to take the order. After she took the order I saw her go into the kitchen. I don't know how much time passed between the time that the waitress left the table and went into the kitchen and the time when Powers grabbed Tischer by the neck. About five or ten minutes passed between the time that the waitress left and the time that the fracas occurred. I saw Powers hit Tischer at least three or four times. Tischer was going down on his knees onto the floor at the time. Powers was standing. Powers was hitting Tischer in the head with his fist. I don't know what other places he hit or how the blows were going, because the only thing I was trying to do was to get away. Mr. Piccione did not come to Tischer's aid. Someone had hold of my hand over my wrist. I don't know how I got loose--I must have pulled loose. Mr. Tischer had hold of me. I went out to the counter room. I observed Piccione frying hamburgers. I did not talk to Piccione until after Tischer was taken out of the place. I left the restaurant and went down town and called the police who came back with me. I pointed Powers out to the police and they talked to him. I told Piccione's wife and Otto Probst that 'my arm hurts.' I hurt my arm.'

Mrs. Weihert also testified that she had observed a disturbance in the restaurant on a previous occasion when there was an altercation between some truck drivers. She said it was just a scuffle and was over just as quickly as it started. She also stated that she witnessed no other fight or altercation excepting small arguments that happen almost everywhere. She also testified that although she did not know John Powers, she had seen him in the restaurant on a previous occasion. At that time she delayed waiting on Powers and his party for reason that she was serving others. Powers used abusive language, and his group appeared to have been drinking. On that occasion, although Powers departed from the restaurant before Mrs. Weihert left, and she had been advised by another waitress and by Piccione to wait a while, nevertheless she was not afraid to go to her car alone, and in fact did so. In her adverse examination Mrs. Weihert testified that the assault by Powers 'took her completely by surprise.'

The plaintiff, Donald Tischer, in part testified as follows:

'At the restaurant I had a chance to notice the table that was next to mine. Later I learned that it was occupied by John Powers and a group. I noticed him. He was sitting very close to me on the left side. He had a bottle of beer. There was more than one. He was engaging in rather loud conversation--a rough voice. I would say that we had been at our place for about five minutes before the waitress came to take our order. I just wanted to get acquainted with this fellow (Powers) next to me and I said, 'I just got out of the hospital.' He turned around and said, 'I have been there too. What are you going to do about it?' I didn't say a word. He got up and grabbed me by the back of the neck. I tried to get out but he had his chair too close behind me. Two or three minutes passed from the time the waitress left after taking our order and the time that Powers took hold of the back of my neck. Powers had a loud mouth. He was kind of a crabby guy; he was pretty well off; lit up pretty well, flushed in the face, awful red and hot tempered. After he grabbed me by the neck I tried to get off my chair. He grabbed me to hold me. He hit me with his left hand, back of the side of the jaw and neck. He held my neck and I could not turn my head. Then he hit me twice with his right hand and I don't know what happened from there because I was pretty well dopey. He got me one blow below the temple. The second blow hit me in the nose.'

In cross-examination the plaintiff, Tischer, testified:

'I turned to this man who was Powers. He had a bunch of beer bottles on the table. He was crabby at that time, that is he sounded crabby. I did not pay attention to him right away. This thing happened very swiftly. I was not prepared at all for it. I had no reason to believe that he was going to touch me. I never thought he would be that kind of a man. I didn't know he was going to do it until he actually hauled off and started hitting. I never dreamed that I was going to get hit.'

Called adversely as a witness at the trial, the defendant, Frank Piccione, testified that:

'I have operated that restaurant for six years. Twice police were called (during that time) for disturbances--once when a fellow went to sleep and could not be awakened--and another time when two buddies were fooling around. I neither sell nor tolerate the consumption of intoxicants in the restaurant. The waitresses have instructions to inform me when any customer carries liquor into the place. There is a sign in the restaurant...