Miller v. Staton

365 P.2d 333, 58 Wash. 2d 879, 1961 Wash. LEXIS 379

• Court: Washington Supreme Court
• Decided: October 5, 1961
• Docket: 35329
• Status: Published

Opinions

Hunter, J.

This action arose as a result of personal injuries sustained by the plaintiff, Mary Agnes Miller, when she was knocked down by two patrons who were fighting in the defendants’ tavern. Judgment was entered upon a jury verdict awarding the plaintiff $25,743.37. The defendants appeal.

On New Year’s Eve, 1957, the plaintiff, with her husband and friends, went to the tavern of the defendants (appellants) in Omak, Washington, about 9:30 or 10:00 o’clock. They were seated at a table next to the dance floor where they drank beer during the evening, continuing until about 2:20 in the morning when the fight occurred.

The defendants first contend there was insufficient evidence to sustain a finding of negligence. The testimony on this issue is in sharp dispute; however, the evidence most favorable to the plaintiff (respondent) is as follows:

The dance floor was crowded; there were approximately two hundred people in the tavern, which was designed to accommodate a maximum of eighty-four people. Quite a few of the patrons were under the influence of alcohol; some were staggering. There previously had been two fights, or near fights, that evening. Also, while under the influence of alcohol, the two participants in the fight which caused the injuries to the plaintiff, had caused a disturbance earlier that evening, and either one of the proprietors or one of the waiters had cautioned them.

Mary Kusler, who was seated at the table with the plaintiff, testified on cross-examination as follows concerning the fight which caused the plaintiff’s injuries:

“Q From the time you first observed these men fighting until your table was knocked over, how much time elapsed? A Well, that would be hard to say. A matter of minutes. Q Now a matter of minutes. A minute is sixty seconds. A I know that. Q Do you mean it took you a matter of minutes to get up from behind your table and get out of the way before it was knocked over? A It could have. I was scared. ...”

Edna Reeves, who was sitting at a table behind the one at which the plaintiff was sitting, testified on direct examination:

“Q And tell the jury now, in your own words, what you were doing just prior to the fight and what happened during the fight the best you can. A Well, I was sitting facing the dance floor and I don’t know where the fight started. When I first saw it they were approximately in the middle of the room. There was dancing going on at the time and I saw these two men hitting each other and they gradually worked their way across to the left side — it would have been to my left, and this one fellow had the other just partially bent over the booth, and they, of course, kept hitting each other; and he more or less gained his balance, the one that was bent over the booth and they fought at an angle towards my direction, only Mrs. Miller’s table was just in front of me only it seemed like the corner of her table and the chair somehow as it struck — it just looked like one solid blow — and it threw her backwards, and I would say it sent her about three or four feet back, and they were still fighting . . . ”

On cross-examination, Edna Reeves testified:

“Q And then you said they gradually worked their way over to what would have been your left, against the booths. A Yes. Q Well, what do you mean by gradually? A Well, one blow didn’t send him there. They struck each other several times before they finally — or were to my left as I stated. . . . Q How many swings would you say that they took at one another from the time you first observed the fight? A I wouldn’t say. Q Well, you said they were swinging. Do you mean— A Well, if you watch a fight you don’t count the blows. Q Well, would you say there were more than five? A Certainly. Q More than ten? A Yes. Q More than fifteen? A I couldn’t say. ...”

The general rule followed by this court is that an innkeeper or restaurant owner owes the duty to his guests to exercise reasonable care to protect them from injury at the hands of a fellow guest. Gurren v. Casperson, 147 Wash. 257, 265 Pac. 472 (1928); Peck v. Gerber, 154 Ore. 126, 59 P. (2d) 675, 106 A. L. R. 996 (1936); Thomas v. Bruza, 151 Cal. App. (2d) 150, 311 P. (2d) 128 (1957).

Applying this rule as to the duty of care owed by the defendants to the plaintiff in considering the foregoing evidence, the jury was entitled to conclude that, by the exercise of reasonable care for the safety of their patrons, the defendants in the operation of their tavern knew or should have known a fight was ensuing in time to have stopped the fight thereby avoiding the resulting injuries sustained by the plaintiff. The trial court was correct in denying the defendants’ motion for a directed verdict on the grounds of insufficiency of the evidence.

The defendants assign error to the refusal by the court to give their proposed instruction “K.” We find the rule of law proposed was adequately covered by other instructions and, therefore, the defendants were not prejudiced. Kidwell v. School Dist. No. 300, 53 Wn. (2d) 672, 335 P. (2d) 805 (1959).

The defendants assign error to the court’s instructions Nos. 11 and 14, for the reason they overemphasize the duty of the defendants to preserve order and prevent injury to their guests. The instructions are in some respects repetitious, but not to the extent of preventing the jury’s fair understanding of the law of the case; therefore, they were not prejudicial.

The defendants further contend the trial court erred in giving instructions Nos. 11 and 14, for the reason that when read alone they place upon the defendants the duty of an insurer of the plaintiff’s safety. Instructions may not be singled out without reference to the other instructions. Lozan v. Fraternal Order of Eagles, Aerie No. 3, 53 Wn. (2d) 547, 335 P. (2d) 4 (1959). Instructions must be read in the light of the other instructions given. Bell v. Bennett, 56 Wn. (2d) 780, 355 P. (2d) 331 (1960). Considering the instructions in this manner, it is clear the court went no further than to place upon the defendants the duty to exercise reasonable care for the safety of their patrons; however, we do not approve the form of the instructions. The objections could have been avoided by a more careful drafting by the scrivener.

The defendants further contend the trial court erred in giving instructions Nos. 14 and 15, since this removed from the jury’s consideration the question of causal relationship between the defendants’ negligence and the resulting injury to the plaintiff. They argue that other instructions relating to proximate cause may not be considered since numbers 14 and 15 are formula instructions and, in such instances, all elements of proof essential to one’s liability must be contained in each instruction, citing Donner v. Donner, 46 Wn. (2d) 130, 278 P. (2d) 780 (1955). This objection to the instructions was not brought to the attention of the trial court. No exceptions having been taken on this ground, it cannot be raised for the first time on appeal. State v. Cogswell, 54 Wn. (2d) 240, 339 P. (2d) 465 (1959).

, The defendants contend the trial court erred in admitting into evidence, over objections, testimony concerning fights that occurred in defendants’ tavern in the fall of 1957. We disagree. One of the issues relating to the exercise of reasonable care for the guests’ protection was whether additional policing was necessary on this evening, in View of the defendants’ knowledge of the likelihood of boisterous conduct, disorder, and fights on the occasion of a New Year’s Eve celebration, with the attendant imbibing of intoxicants. Evidence of conduct of patrons on prior occasions is admissible to show similar conduct could reasonably have been anticipated by the defendants during a subsequent festive evening such as New Year’s Eve, which would require policing reasonably adequate for their guests’ protection. The objectionable evidence was admissible for this purpose. McCormick on Evidence, § 167 (1954); See Tonning v. Northern Pac. R. Co. 180 Wash. 374, 39 P. (2d) 1002 (1935).

The defendants contend the court erred by admitting into evidence testimony concerning the practices of another establishment, the Eagles Lodge in Omak, as to policing and keeping order. We agree. Although, where negligence is in issue, the usual conduct or general custom of others under similar circumstances is relevant and admissible, such custom may not be established by evidence of conduct of single persons or businesses. 65 C. J. S. Negligence, § 232 (1950). Therefore, the evidence as to the custom of policing in the bar of the Eagles Lodge was inadmissible and prejudicial to the fair consideration by the jury of the adequacy of care exercised by the defendants for their patrons’ safety.

The defendants further contend the court erred in admitting into evidence plaintiff’s exhibits Nos. 24 and 25, which were medical bills incurred by the plaintiff for treatment of a herniated diaphragm and a duodenal ulcer, for the reason there is no showing they were caused by the accident.

The record discloses these conditions of the plaintiff developed more than a year after the accident in question. The medical evidence most favorable to the plaintiff is as follows: Dr. Gordon B. O’Neil, a specialist in the field of orthopedic surgery, testified:

“Q And did you form any conclusions as a result of your most recent examination? A Yes. . . . The patient has developed a certain amount of anxiety because of this pain, I noted, and this may be a contributing factor in the problem of peptic ulcer. The other thing I discussed with her was the problem of original injury to the diaphragm. The patient fell on her back and of course the abdominal organs would force into the diaphragm. It is possible to tear a diaphragm without particular problems, the diaphragm tear healing, and then gradually stretching. I am not a specialist in that field but it is my opinion that this could have occurred in this particular injury. Q Did you advise Mrs. Miller to see a specialist in that field? A I advised her that she should rely on the specialists who are investigating that problem at present. Q Did you have any further conclusions? A No, sir. . . . ” (Italics ours.)

He further testified:

“Q In your opinion, could nervousness, worry and concern cause a peptic ulcer? A That is one of the accepted, in my opinion, contributing cause to peptic ulcer or stomach ulcer. ...”

On cross-examination, Dr. O’Neil testified:

“Q Again, to answer my question, you cannot say that this injury to her diaphragm probably occurred as a result of her accident on January 1st, 1958? A I will not say ‘probable’ for the reasons I gave you, but in my experience which goes outside of my field, I would say it is possible (Italics ours.)

The causal relationship of an accident or injury to a resulting physical condition must be established by medical testimony beyond speculation and conjecture. The evidence must be more than that the accident “might have,” “may have,” “could have,” or “possibly did,” cause the physical condition. It must rise to the degree of proof that the resulting condition was probably caused by the accident, or that the resulting condition more likely than not resulted from the accident, to establish a causal relation. Clevenger v. Fonseca, 55 Wn. (2d) 25, 345 P. (2d) 1098 (1958); Bland v. King County, 55 Wn. (2d) 902, 342 P. (2d) 599, 135 A. L. R. 517 (1959).

The medical testimony most favorable to the plaintiff does not establish such a causal relation between the accident and the herniated diaphragm and the peptic ulcer of the plaintiff. The general statement by Dr. O’Neil that nervousness, worry and concern “is one of the accepted . . . contributing” causes of a peptic or stomach ulcer has not been related by the expert witness to the instant case, and, therefore, it cannot constitute testimony that the plaintiffs condition of worry and anxiety was a probable cause of her ulcer. Therefore, the trial court erred by admitting into evidence the medical bills for treatment of these conditions. We said in Wappenstein v. Schrepel, 19 Wn. (2d) 371, 142 P. (2d) 897 (1943):

“During the course of the trial the court ruled that evidence concerning the amputation of the toe was improper, on the ground that it covered a matter not alleged in the complaint. The court also instructed the jury that the respondent had failed to prove that she had suffered a kidney infection as a result of the accident. It further appears from the evidence that the high blood pressure, the liver trouble, and the constipation had been of long standing prior to the accident and were not caused thereby. Nevertheless, the court admitted the foregoing exhibits covering the charges grouped as a whole, without any attempt at segregation.

“It is apparent that the jurors had no way of determining to what extent the charges were properly allowable, and therefore they were compelled to resort to speculation and conjecture upon that subject. It is equally impossible for us to determine how much of the general verdict was allocated to expenses incurred for treatments and hospital services occasioned by the injuries sustained in the accident. Furthermore, it is impossible for us to say whether or not, in fixing the amount of its general verdict, the jury was influenced by a consideration of the total amount of respondent’s medical and hospital bills for all of her ailments, regardless of their relevancy to the injuries sustained as a result of the collision.

“ . . . The jury was allowed to consider evidence that was inadmissible and to take into consideration expenditures for which the appellant was not liable, and which, if considered, would in all probability influence the jury in determining the seriousness of the injuries resulting from the accident.

“The judgment is reversed, with direction to the trial court to grant the motion for a new trial.” (Italics ours.)

The reasoning of the Wappenstein case is controlling in the instant case. The admission of exhibits Nos. 24 and 25 constituted prejudicial error.

The defendants assign error to the court’s admitting into evidence the plaintiff’s exhibit No. 13, which is a letter from Dr. O’Neil in Seattle to Dr. Fischnaller in Omak, relative to his diagnosis and recommended treatment for the plaintiff. The plaintiff had been referred to Dr. O’Ne^ by Dr. Fischnaller.

The defendants contend the letter constituted a summation of Dr. O’Neil’s testimony, that it was not the best evidence, and that it placed undue emphasis on the opinion of this witness.

The record discloses that Dr. O’Neil testified at length and in detail as to his diagnosis of the plaintiff, upon which he was cross-examined by the defendants’ counsel. Nothing is contained in the letter that was not included in his testimony. The defendants were not prejudiced by undue emphasis, resulting from the admission of the exhibit, for the reason that the defendants introduced exhibit No. 20, a letter from the defendants’ witness, Dr. Cadman, to Dr. Fischnaller, containing Dr. Cadman’s opinion which was contrary to and more extensive than that expressed by Dr. O’Neil in exhibit No. 13. Moreover, the issue was raised by defendants’ counsel, in his cross-examination of Dr. O’Neil, as to whether the plaintiff came to Dr. O’Neil voluntarily or by reason of a reference from Dr. Fischnaller. The question was asked whether he had a letter to substantiate the reference. Exhibit No. 13 constituted correspondence with Dr. Fischnaller as evidence of this reference and was admissible for that purpose.

Finally, the defendants contend the court erred in denying their motion for a new trial on grounds that the damages awarded were so excessive as unmistakably to indicate that the verdict must have been the result of passion or prejudice. Due to our disposition of this case, it is not necessary for us to pass upon this contention.

We have considered all the errors assigned by the defendants in view of the necessity of remanding this case for a new trial. From the errors committed, we are satisfied the defendants were denied a fair trial. The judgment entered upon the verdict by the trial court is reversed, and the cause is remanded for a new trial on all issues.

The costs on this appeal shall abide the final determination of the cause.

Finley, C. J., Hill, Donworth, and Weaver, JJ., concur.