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SCHELIN v. GOLDBERG. (12/09/58)

December 9, 1958

SCHELIN, APPELLANT,
v.
GOLDBERG.



Appeal, No. 296, Oct. T., 1957, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1954, No. 5091, in case of Gordon Schelin v. Harry B. Goldberg, individually and as co-partners trading as The 1613 Bar. Order reversed.

COUNSEL

Michael Shekmar, with him Harold B. Lipsius, for appellant.

Richard J. Raab, with him James H. McHale, and S. B. Singer, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 188 Pa. Super. Page 342]

OPINION BY WOODSIDE, J.

This is an appeal from the order of the court below granting the defendants' motion for a new trial after the plaintiff had recovered a verdict for damages which he suffered while a patron of the defendants' taproom.

Considering the evidence in the light most favorable to the plaintiff, which we are required to do in the light of the verdict, we find that the plaintiff entered

[ 188 Pa. Super. Page 343]

    the defendants' taproom on the night of October 4, 1952, visibly intoxicated. In the four or five hours preceding his entry he had visited several other bars and had consumed 12 or 13 double shots of whiskey and an equal number of beers. He was served several additional double shots of whiskey and several beers (probably four) at the defendants' taproom. While in the defendants' establishment, he bought flowers from a boy who came into the taproom selling them. He attempted to pin these on several patrons, including a man by the name of Richard Monk. Monk resented this, and the plaintiff and he became involved in an argument. When the plaintiff left the bar and walked towards the exit, he was conscious of somebody following him. He thinks it was Monk but is not sure. Before the plaintiff reached the exit he was struck on the side of the head and knocked to the floor. Without any help he arose to his feet and left the taproom. When he was a short distance away from the taproom, a motorist noticed that he was badly injured and took him to the hospital where it was found that his injury required the removal of his left eye.

The defendants admit that the plaintiff came into their place of business intoxicated on the night in question and their testimony shows that he was struck by Monk. They deny that he was served anything at their taproom and they question that he received the serious injury of which he complains, while in their taproom.

In July of 1954 the plaintiff sued the defendants, and at the trial of the case received a verdict of $4890.35. The court below refused a motion by the defendants for judgment n.o.v., but granted their motion for a new trial.

The trial judge had charged the jury that when an intoxicated person is furnished intoxicating beverages, the recipient is not ...


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