Whelchel v. Strangways

• Decision Date: 17 June 1976
• Citation: 550 P.2d 1228,275 Or. 297
• Parties: Kenneth WHELCHEL, Respondent, v. Malcolm H. STRANGWAYS and Shirley A. Strangways, Appellants. . *
• Court: Oregon Supreme Court

Page 1228

550 P.2d 1228

275 Or. 297

Kenneth WHELCHEL, Respondent, v. Malcolm H. STRANGWAYS and Shirley A. Strangways, Appellants.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Feb. 6, 1976.

Decided June 17, 1976.

James C. Goode of Goode, Goode, Decker, Hinson & Ryan, P.C., Albany, argued the cause and filed briefs for appellants.

Nina E. Johnson, Eugene, argued the cause for respondent. With her on the brief was Roy Dwyer, P.C., Eugene.

McALLISTER, Justice.

The plaintiff, Kenneth Whelchel, brought this action to recover damages from the defendant Malcolm H. Strangways and Shirley A. Strangways, his wife, for personal injuries caused by the alleged negligence of the defendants.

The defendants were the owners and operators of the Wren Tavern in the community of Wren, about five miles west of Corvallis. In his amended complaint plaintiff charged the defendants with negligence:

'1. In permitting disorderly conduct on the part of certain persons to take place upon the licensed premises, namely, roughhousing, fighting, and the use of abusive language.

'2. In failing to direct persons to leave the premises and remove persons from its premises after said persons threatened violence to other customers, including the Plaintiff.

'3. In failing to heed warnings of violence and thereafter to take appropriate action to protect customers of the Defendant, including the Plaintiff.

'4. In failing to provide an employe or employees who would maintain proper order and exercise reasonable care for the safety and comfort of its customers.'

The jury, by a special verdict, found that the defendants were negligent and that plaintiff was not contributorily negligent. Judgment was then entered for plaintiff and defendants appeal.

Defendants first assign as error the denial of their motion for a directed verdict which raised the sufficiency of the evidence to make a case for the jury. Since the jury found for plaintiff we must consider the evidence in the light most favorable to plaintiff.

The Wren Tavern is a small establishment 33 28 feet containing, inter alia, a bar, 14 bar stools, and two pool tables, and could accommodate, at the most, about 20 persons.

Although the evidence is some respects is disputed, there was evidence from which the jury could have found the facts hereinafter set out.

During the evening of October 27, 1973, prior to the sequence of events which culminated in the injury to plaintiff, there were 12 to 14 patrons in the bar. The tavern was orderly with no one visibly intoxicated or in any manner abusive. Malcolm Strangways was tending bar and was the only person working.

Sometime between seven o'clock and eight o'clock, p.m., Eldean Booth and Dan Fouts arrived at the tavern, ordered peanuts and beer and began playing pool. Shortly thereafter the plaintiff, Kenneth Whelchel, arrived with the three Spinney brothers and Francis Spinney ordered beer at the bar. Shortly after the arrival of the plaintiff and the Spinney brothers, the following incident occurred, which was described by Booth as follows:

'A. * * * One of the follows (Darrel Spinney) standing behind the people sitting at the bar was staring at me. I looked at him and apparently I was staring at him. I could tell the agitation was building.

'Q. Was anything said?

'A. There was nothing said.

'Q. What happened next?

'A. I didn't want to have any trouble so I stepped above the bar stool, stepped over to the man (Darrel Spinney) and I told him I didn't want any trouble and he told me there wouldn't be any trouble if I would quit staring at him and I told him I would. We shook hands and I went back to the bar.

'Q. Was anyone else involed in this handshaking beside you and this other person?

'A. Dan came over.

'Q. Dan?

'A. Dan Fouts and the other fellow (the plaintiff) came over and the person I was having the stare down with came. The four of us shook hands and decided it was all over.'

Defendant Malcolm Strangways testified he observed this incident from behind the bar.

Booth testified that he returned to his spot near the bar, waiting his turn at the pool table. He testified that when his turn came he began to walk over to the pool table, but was 'attacked' by Darrel Spinney. Booth testified that he hit back at Spinney. Francis Spinney then stepped in between the two men and testified that he did so in an attempt to stop the fight. The fight continued, however, with the men moving toward the door to the outside.

There was testimony that when the fight began between Darrel Spinney and Booth the plaintiff Whelchel walked over to where Dan Fouts was standing. Fouts was holding a pool cue by the small end with the butt end resting on his shoulder. The defendant testified that he heard the plaintiff tell Fouts that he 'better not use the stick'. A witness to the incident between plaintiff and Fouts testified as follows:

'Kenny (the plaintiff) was at this point (pointing to a prepared diagram), let's see, Kenny was standing here and Fouts was standing here and they were still talking and Fouts raised a cue sitck like this as if to hit Kenny. Kenny continued talking and he relaxed the cue stick onto his shoulder and Kenny talked a little bit longer and turned to leave and Fouts raised the cue stick and hit him with the cue stick and Kenny fell in this area here (indicating).'

There was medical evidence that the blow to plaintiff's head caused serious permanent injury.

The jury could have found that from the time Spinney and Booth began fighting until the plaintiff was struck by the pool cue a period of at least three minutes elapsed. There was evidence from which the jury could have found that throughout this entire incident the defendant, Malcolm Strangways, remained behind the bar and took no action to either stop the fight or eject the men from the premises, nor did he attempt to prevent Fouts from using the pool cue as a weapon in the melee.

The jury could have found that the defendants were negligent if it found that there was sufficient time between the start of the fight and the injury to the plaintiff for the defendant Malcolm Strangways to have taken some affirmative action to stp the fight and to prevent the injury to the plaintiff. Whether Strangways should have attempted to stop the fight, to eject the fighters from the premises, and to prevent Fouts from using the pool cue as a weapon were all questions for the jury. We hold that the court did not err in denying defendants' motion for directed verdict.

Defendants next contend that the court erred in admitting testimony of the conduct of the defendants during other fights and disorderly conduct which had previously occurred on the premises. The following is the testimony objected to, which was elicited from the witness Eckstein:

'MR. DWYER: Q. When these fights occurred, what would Mr. Strangways do, if anything?

'MR. GOODE: Same objection, your Honor. It doesn't have anything to do with this case, what he might have done on previous occasions.

'THE COURT: Objection sustained.

'MR DWYER: Q. Did you ever see Mr. Strangways on the other side of the bar when the fights occurred?

'MR. GOODE: Same objection, your Honor. He is talking about other times, apparently it's not this case. Where Mr Strangways positioned himself before has nothing to do with this case.

'MR. DWYER: I think it goes to show, your Honor, control of a crowd when something goes on.

'THE COURT: I will overrule the objection. You may answer.

'WITNESS: A lot of times he didn't want to get involved in them.

'MR. GOODE: Objection. The answer is nonresponsive to the question and it is a conclusion.

'THE COURT: Objection sustained. Ladies and gentlemen of the jury, you are instructed to disregard the answer.

'MR. DWYER: Q. Tell the jury, in other words, when these things happened, when the fights happened, would Mr. Strangways come to the other side of the bar, yes or no?

'A. (No response)

'Q. You can answer. If he objects--he can take care of himself.

'MR. GOODE: Same objection that I have registered before.

'THE COURT: You may have your continuing objection.

'MR. DWYER: Q. You can answer the question.

'A. No, he wouldn't come from behind the bar sometimes.

'Q. During these times was there anybody there to stop the fights who was working for him?

'A. No.

'Q. What had happened to the fights--

'MR. GOODE: Objection, they're not being offered--

'THE COURT: I will overrule the objection. You may answer.

'WITNESS: A lot of the times he would tell them to go outside to fight and get off the premises.'

Defendants contend that the evidence of conduct at other times is not admissible if it has no direct relation to the events in dispute, citing Karsun v. Kelley, 258 Or. 155, 482 P.2d 533 (1971).

The jury could have found, however, from the testimony quoted above, that other fights had occurred in the tavern and that Malcolm Strangways, as bartender, had not taken reasonable precautions to protect the other patrons of the tavern during such disturbances.

The plaintiff contends that the evidence was offered to prove his allegation that the defendants were negligent in failing to provide an employe or employees to maintain order in the tavern. Plaintiff's position is supported by our holding in Beecher v. Montgomery Ward & Co., 267 Or. 496, 501, 517 P.2d 667, 670 (1973),...