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HOWARD v. ZANEY BAR (01/07/52)

January 7, 1952

HOWARD, APPELLANT,
v.
ZANEY BAR



Appeal No. 181, Jan. T., 1951, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1949, No. 3749, in case of Eugene Howard v. Zaney Bar. Judgment affirmed.

COUNSEL

Howard Richard, for appellant.

Harry R. Back, for appellee.

Before Drew, C.j., Stern, Stearne, Ladner and Chidsey, JJ.

Author: Stearne

[ 369 Pa. Page 155]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

Plaintiff, a patron in defendant's bar, was seriously wounded when shot by its bartender. Plaintiff thereupon

[ 369 Pa. Page 156]

    instituted this suit in trespass against defendant to recover for the injuries received. The court below submitted the issues to the jury which found for plaintiff in the sum of $3,800. Defendant then filed a motion for judgment n.o.v. which the court below granted. This appeal followed.

The facts are summarized by the court below: "The evidence shows that in the early hours of the morning the plaintiff -- a regular customer of this bar room -- entered the premises and consorted with a female customer. The plaintiff admits he 'made some passes at her.' The bartender who was behind the bar said to the plaintiff, 'I would not talk to anyone like that. He asked me if I was looking for trouble and I told him no.' 'The bartender reached under the counter and pulled a pistol out... he shot at me. The bullet went through my little finger and went into my neck.'... 'Then he shot at Van Loan who was standing next to the piccolo.'"

The sole issue on appeal is whether the bartender was acting within the scope of his employment when he shot plaintiff. The evidence clearly indicates that he was not.

It is the duty of the owner of a bar or taproom to keep it orderly and reasonably well policed: William Rommel v. Jacob Schambacher, 120 Pa. 579, 11 A. 779; Wolk et al., v. Pittsburgh Hotels Co., 284 Pa. 545, 550, 131 A. 537; Poulos v. Brady, 167 Pa. Superior Ct. 150, 152, 74 A.2d 694. This duty the defendant owner fulfilled when he hired the bartender and instructed him to maintain order in the bar. No question arises that it required more than one bartender to maintain order. It was the duty of the bartender to maintain order. To perform this duty, inherently the bartender was ...


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