Opinion
Hearing Granted Aug. 21, 1944.
Appeal from Superior Court, Kern County; Robert B. Lambert, Judge.
Action by John Fulfer against Sherry’s Liquor Stores and another for injuries sustained by plaintiff while a patron in defendants’ store. From a judgment for defendants, the plaintiff appeals.
Affirmed.
COUNSEL
Claflin & Chain, of Bakersfield, for appellant.
Borton, Petrini, Conron & Borton, of Bakersfield, for respondents.
OPINION
MARKS, Justice.
This is an appeal from a judgment entered after defendants’ motion for nonsuit had been granted at the close of plaintiff’s case.
In his opening brief plaintiff makes the following statement of facts:
"On August 12, 1943, defendant Sherry’s Liquor Store was the owner, and defendant Earl Padgett was the employee manager, of a branch of said stores located at 904 Baker Street in East Bakersfield, California, and on the night of August 12, 1943, defendant Padgett was solely in charge of said store; sometime during the night of said day three men who were together came into the store to make a purchase. An argument ensued between these men and Padgett over the sale because of the questionable age of the man who desired to make the purchase. Padgett tried to phone the police but was intimidated and desisted and then was severely beaten by two of these three men who then left the premises. Shortly after they had gone plaintiff came in with a friend to make a purchase and was standing by the wall at the rear of the store with his friend and Padgett making his selection when the three men who had been in there originally and who had beaten Padgett and threatened him regarding the telephone returned reinforced by two other men. Plaintiff had no knowledge of what had gone on before, nor was what had gone on before imparted to him by Padgett. One of the three original men commenced to argue with Padgett about the dollar he paid him (Padgett) and demanded the dollar back. When Padgett refused to give it back, he stated ‘You will give me that dollar back or I will take it out of your hide.’ Padgett, mindful of what had happened to him prior to this time and of the threat made relative to using the telephone for the purpose of calling the police, looked in plaintiff’s direction and directed him to call the police. Plaintiff, being unaware of any obvious danger to him in so doing, took two or three steps in the general direction of the telephone still undecided as to whether he would phone or not, at which time two or three of the men who had previously been in the store set upon him, beat him about the head and face with their fists, knocked him to the floor, kicked him while he was on the floor, breaking his jaw, injuring his throat, and generally bruising him."
We should add to this statement that when the youths demanded their dollar back, Padgett told them they had broken some liquor bottles and he was not returning any money; that the young men told Padgett they would take it out of his hide--would stamp him into the cement floor unless he returned the dollar; that their attitude was threatening and their voices loud and angry; that this was apparent to plaintiff and his friend who had accompanied him; that when plaintiff moved toward the telephone one of the men said that no one was going to phone the police and then attacked him immediately; that in going to the attack "they ran more than walked * * *. All three came at practically the same time"; that Padgett helped resist the attack of the ruffians; that the entire altercation lasted between three and five minutes.
Counsel for plaintiff admit that they have been able to find no California case involving an action for damages decided under a factual situation similar to that appearing here. They cite several authorities on the circumstances under which a court may grant a motion for nonsuit, on the duty of a property owner to keep his premises reasonably safe for use by an invitee and on his duty to warn the invitee of any known danger. These principles are so well known that a citation of authorities and discussion of them should be unnecessary. Counsel cite decisions from other jurisdictions which they maintain support their argument to the effect that the evidence shows that Padgett breached a duty which he owed to plaintiff, an invitee on the premises of Sherry’s Liquor Stores, by failing to warn him of a danger known to Padgett but unknown to plaintiff and which was a proximate cause of his injuries. We will consider those cases.
Plaintiff relies on the case of Molloy v. Coletti, 114 Misc. 177, 186 N.Y.S. 730, as supporting his argument. In that case a motion by defendant for judgment on the pleadings was granted and judgment was entered for defendant which was reversed on appeal. From the few facts stated in the brief opinion it would seem that plaintiff was a guest in a restaurant operated by defendant. Another guest had been guilty of boisterous, offensive and unlawful conduct of which defendant had notice. This patron threw a heavy water glass which struck plaintiff and injured him. The court seemed to be of the opinion that as defendant had notice of the condition of the boisterous patron he should have made some effort to protect the plaintiff from injury at his hands. The only case cited in support of this conclusion is Rommel v. Schambacher, 120 Pa. 579, 11 A. 779, 6 Am.St.Rep. 732.
In the Rommel case it appears that the plaintiff entered the tavern of defendant and met Edward Flanagan. Both became intoxicated on liquor furnished them by defendant. While Rommel was standing outside the bar talking to defendant, Flanagan pinned a piece of paper on Rommel’s back and lighted it causing serious burns This was done in full view of defendant who neither warned Rommel nor attempted to interfere to protect him. It was held that if defendant saw Flanagan setting fire to plaintiff it was his duty to interfere or if he was guilty of making Flanagan drunk, or permitted him to remain in his tavern knowing he was drunk, defendant owed a duty to his other customers to protect them from injury at Flanagan’s hands.
Curran v. Olson, 88 Minn. 307, 92 N.W. 1124, 60 L.R.A. 733, 97 Am.St.Rep. 517, is also cited. Plaintiff had been a guest in defendant’s saloon and having spent all of his money there went to sleep in a chair. A cook in a restaurant in the rear of the saloon entered and procured some alcohol from the barkeeper employed by defendant. He poured this over the foot of plaintiff and set fire to it causing the injuries complained of. On two prior occasions on the same night the cook had obtained alcohol from the barkeeper which he used in the same manner on two other sleepers. The judgment in favor of plaintiff was affirmed because the barkeeper, having knowledge of the use to which the alcohol was put on the prior occasions still delivered the alcohol to the cook a third time which was held to be a violation of the duty "to use reasonable care to protect their guests and patrons from injury at the hands of vicious or lawless persons whom they knowingly permitted to be in and about their saloon."
The decision in Rommel v. Schambacher, supra, is considered at length in the case of Rahmel v. Lehndorff, 142 Cal. 681, 76 P. 659, 661, 65 L.R.A. 88, 100 Am.St.Rep. 154, where our Supreme Court said:
"The proprietor was held liable for a tort in which he was personally a participant, and what else was said, so far as it may seem to apply to a malicious assault by a servant, wholly unauthorized and unobserved by the master, may be regarded as dictum. An innkeeper is, no doubt, guilty of negligence if he admits to his hotel, or permits to remain there, whether as guest or servant, a person of known violent and disorderly propensities, who will probably assault or otherwise maltreat his guests, and for the consequence of such negligence he may be liable in damages. But the plain ground of his liability in such case would be his negligence in harboring persons dangerous to the peace and comfort of those for whose comfort he is bound to provide. And if, as in the Philadelphia case, he stands by while a guest is exposed to the violence of a person who has been made dangerous by his fault, and sees an injury inflicted without any effort to prevent it, he may be regarded as particeps criminis."
The final comment of our Supreme Court on Rommel v. Schambacher is particularly applicable here. It said:
"We do not regard it as a case strictly in point, but one resting upon grounds peculiar to itself, and sufficient to sustain the conclusion of the court without reference to the proposition to which it has been cited here."
The foregoing should sufficiently distinguish the factual situations presented in the Rommel case and in Molloy v. Colletti, supra, and Curran v. Olson, supra, from those of the instant case so that they need not be considered controlling here. In the instant case the attack on plaintiff was almost instantaneous with the apparent enmity of the ruffians towards him. Padgett had no sufficient opportunity to warn plaintiff of his danger which must have been as apparent to plaintiff as to Padgett. The further fact that Padgett immediately went to his assistance and engaged in the fight to protect him also distinguishes the cases.
Rahmel v. Lehndorff, supra, has been cited with approval and followed. See Clancy v. Barker, 8 Cir., 131 F. 161, 69 L.R.A. 653; Yates v. Taft Lodge, 6 Cal.App.2d 389, 44 P.2d 409; Davison v. Diamond Match Co., 10 Cal.App.2d 218, 51 P.2d 452. It has also been cited and distinguished. See, Ruppe v. City of Los Angeles, 186 Cal. 400, 199 P. 496; McInerney v. United Railroads, 50 Cal.App. 538, 195 P. 958; Stansell v. Safeway Stores, Inc., 44 Cal.App.2d 822, 113 P.2d 264. While some question may be raised by later cases as to the ultimate decision in the Rahmel case the rules of law we have quoted from it are still generally applied.
Plaintiff also relies upon Sinn v. Farmers Deposit Savings Bank, 300 Pa. 85, 150 A. 163, where the plaintiff, a customer, was injured by an explosion caused by a man who was attempting to rob the defendant bank. The judgment in favor of plaintiff was affirmed on appeal because between ten and twenty minutes elapsed between the time the danger became known to the employees of the bank and the explosion during which time the customer might have been warned of his danger. This lapse of time alone distinguishes that case from the instant case. The Court of Appeals of New York in a carefully considered opinion (Laidlaw v. Sage, 158 N.Y. 73, 52 N.E. 679, 44 L.R.A. 216) reached a conclusion opposite to that of the Pennsylvania court in the Sinn case.
Plaintiff also cites Johnson v. Monson, 183 Cal. 149, 190 P. 635; Hiroshima v. P. Gas & Elec. Co., 18 Cal.App.2d 24, 63 P.2d 340, and Stansell v. Safeway Stores, Inc., supra. In each of those cases the assaults were committed by an employee and the cases turned on the question of whether or not the acts complained of fell within the scope of employment. In the instant case the assault was made by others than the employee, and the employee attempted to protect the plaintiff.
For the purpose of this opinion we may assume, as argued by plaintiff, without holding, that Padgett owed a duty to plaintiff to warn him of the danger of an assault, if as a reasonably prudent person he should have anticipated such an assault, and if he had an opportunity of doing so in time to prevent injury.
When the assault was made on Padgett, plaintiff was not present. The enmity of the assailants was directed towards Padgett and no one else. When they returned their enmity was still directed against Padgett and they threatened him and no one else. There was nothing to indicate that they would assault an innocent bystander until plaintiff started to move towards the telephone. The assault followed this movement immediately so there was no opportunity for any warning. Padgett did all he could by engaging in physical combat to protect plaintiff. He had no time for words so went into action.
Further, there is nothing to indicate that the assault on plaintiff was a foreseeable result to be expected from the conduct of the assailants. A defendant cannot be held liable where the acts resulting in the injury of a plaintiff would not have been foreseen by a reasonably prudent person. Reithardt v. Board of Education, 43 Cal.App.2d 629, 111 P.2d 440; Katz v. Helbing, 205 Cal. 629, 271 P. 1062, 62 A.L.R. 825. We fail to see how a reasonably prudent person could have anticipated or foreseen the unwarranted and unlawful attack on plaintiff because of the prior assault on Padgett and the threats to do him bodily harm.
The judgment is affirmed.
BARNARD, P. J., and GRIFFIN, J., concur.