Slawinski v. Mocettini

KAUFMAN, P. J.

This is an action for wrongful death brought by the surviving widow and minor children of Stanley Slawinski, who died as a result of a gunshot wound inflicted by one Herbert L. Wilson

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in a tavern and restaurant owned by the respondents, Robert and Roby Moeettini. The complaint alleged that the respondents failed to properly supervise and control their premises so as to prevent the attack and for harboring Wilson.

A jury trial resulted in a verdict in favor of the appellants in the amount of $169,000. Thereafter, the trial court granted the respondents’ motion for a new trial on grounds of insufficiency of the evidence and misconduct of the plaintiffs’ attorney. This appeal is from the order granting the new trial.

The record reveals the following facts: for many years, the respondents operated their establishment known as Bob’s Café on the east side of the old Highway 101 in Greenfield, Cali

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fornia. Bob’s Café consists of a bar with a separate card room at the front of the premises, with a completely partitioned kitchen and dining room area at the rear. On August 8, 1959, Slawinski came into Bob’s Café about 11 a.m. and drank short beers most of the day. He ate lunch there and spent the afternoon drinking beer. Several eyewitnesses testified that Slawinski did not appear to be intoxicated but his blood alcohol content of .213 at the time of death indicated otherwise. Wilson, a regular patron of Bob’s, came in for a beer about 11 a.m. and did not return until about 6 p.m. when he had another beer and sat at the opposite end of the bar from the deceased. Later, Wilson sat down next to Slawinski.

Throughout the afternoon and evening, there were between 12 and 20 patrons in Bob’s Café, several of them feeling very good. There was conflicting evidence as to whether the amount of noise and confusion was more than normal for a Saturday afternoon and evening. However, it is uncontroverted that the conversations between the deceased and Wilson, who apparently had not met before, were normal and friendly. No one was aware of any altercation between Slawinski and Wilson until about 8 p.m. when, for some unknown reason, Slawinski backhanded Wilson off the bar stool and everyone heard the two men fall to the floor. They scuffled on the floor for about 20 seconds and were quickly separated by two other patrons, Jesse Robertson and Chester Norman. As soon as they had been separated, Wilson left without saying a word to anyone. There is conflicting testimony as to whether he looked angry and rushed out, or walked out in a normal manner. When Slawinski got up and sat down on his stool, the bartender, Nalley, asked him: ‘‘Stanley, what do you think you are doing?” Slawinski indicated that Wilson had called him a dirty name and the bartender replied: “I don’t blame you for that, hut if you’re going to fight, get outside.” Slawinski said: “O.K.” and sat down. Robert Mocettini, who had been working in the kitchen during the incident, came in and briefly spoke to the bartender and Slawinski. He “figured everything was all over with” and returned to the kitchen.