Kingen v. Weyant

MUSSELL, J.

This is an action for damages for personal injuries sustained by plaintiff when his head struck the tile floor in a tavern and restaurant owned and operated by appellants Gust and Nick Paleólogos in Fresno County.

The complaint contains three causes of action. The first cause of action is against the defendant Frank Weyant for damages for unlawful assault and battery. In the second cause of action it is alleged that the defendants Paleólogos and their bartender carelessly and negligently served intoxicating beverages to defendant Weyant, knowing that he had consumed intoxicating beverages to excess and knowing that he was a person of vicious, violent, quarrelsome and disorderly propensities; that they negligently failed to control his conduct and allowed him to assault and strike plaintiff with his hands and fists, causing him to fall and strike his head on the floor. It is alleged in the third cause of action that the appellants and their agent, the bartender, negligently served intoxicating beverages to defendant Weyant, negligently failed to control him in his disorderly conduct, having the ability to do so, and negligently allowed him to assault the plaintiff.

A jury trial resulted in a verdict for all defendants and plaintiff moved for a new trial. The court granted the motion on all the grounds stated in the notice of motion and as against all defendants. Defendants Gust and Nick Paleólogos appeal from the order granting a new trial as to them.

On November 6, 1953, the premises involved herein and known as the “Fairground Inn” were owned and operated by the appellants. At about 5 p. m. on that date, defendant Weyant, an equipment operator for the county of Fresno, entered the building and he and his wife, who came in a few minutes later, sat at the bar, drinking, until about 9 p. m. Weyant drank two bottles of beer before his wife arrived and five or six bourbon and soda highballs thereafter. At about 10 minutes to 9 o’clock, one Jim ICepley and his wife came in with another couple and occupied one of the booths. Kepley came over to the bar and got four bottles of beer

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to carry back to the booth, and as he passed Weyant and his wife, he said “Hello” to her. When Kepley, who was not known to Weyant, had returned to his booth, Weyant asked his wife what his name was and she stated that his name was Jim, that he used to live across the alley from her, and that she did not know his last name. Weyant testified that he then said, “It is funny that you should call him Jim and you don’t recall his last name”; that she said, “Well, if you want to know what his last name is, why go over and ask him”; that he then walked over to the young man and said, “Pardon me, sir, my wife don’t seem to recall your last name. What is your last name?”; that Kepley said, “It is none of your damn business”; that he (Weyant) then said, “Would you like to take a walk outside”; that Kepley’s wife would not let him go outside and at that time a Mr. Holcroft came over to the booth and in a “gentlemanly manner settled the situation very nicely”; that he (Weyant) intended to take Kepley out and beat him up; that while he was at the booth the bartender said, “Boys, break it up”; that he (Weyant) then walked back to his wife and started out of the inn; that he took his wife by the arm and off the bar stool and they started toward the door; that “somebody took me by the shoulder when I got opposite the shuffleboard and I just brushed back my arm that way, and the back of my hand struck somebody alongside the jaw”; that he did not see who it was and that he was “just getting unemeumbered to get out of the door”; that as soon as he got out of the door, his wife told him he had better come on back “Forrest is on the floor”; that he went back and sat on a bar stool and saw the plaintiff, Forrest Kingen, stretched out flat on the floor and that the first time he had seen him was as he went out; and that he had seen Kingen playing at the shuffleboard during the conversation with Kepley.