Appeal, No. 111, Jan. T., 1960, from judgment of Court of Common Pleas of Delaware County, Sept. T., 1957, No. 1451, in case of John Corcoran v. Arnold McNeal, individually and trading as "Palm Gardens". Judgment affirmed.
J. Harold Hughes, for appellant.
John S. J. Brooks, with him Hilferty, Brooks & Knapp, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
John Corcoran, the plaintiff in this case, was struck and seriously injured by Russell Wall, a patron of the Palm Gardens, a tavern owned and operated by Arnold
McNeal, the defendant. Corcoran brought an action of trespass against McNeal and was awarded a verdict of $16,801. The defendant appealed, seeking judgment n.o.v., or, in the alternative, a new trial.
Reading the record sur judgment n.o.v., with all factual disputes and conflicting inferences resolved in favor of the verdict-winner, the following narrative emerges from the record. On October 20, 1956, John Corcoran, accompanied by his brother-in-law Stephen Lennon, entered "Palm Gardens" a basement tavern in Chester, and ordered beer and hamburger sandwiches which they received and consumed. About a half hour later they proceeded to leave the tavern by ascending the steps leading to the outside door. While in the rathskeller they had noticed a visibly intoxicated person of imposing physical proportions boisterously disturbing other guests, shoving them "back and forth." He stood about 6 feet high, weighed some 220 pounds and was "powerfully built", with "big arms and big chest". He maneuvered unsteadily on his feet, his voice was thick, and he drank vodka served to him by one of the bartenders.
When Corcoran and Lennon started up the flight of 14 steps, Wall followed them, offering offensive remarks. When they had reached a half-way point up the steps, Wall, without provocation, struck Lennon who retreated down the steps to the bar, complaining to the bartender and asking for assistance. The bartender ignored Lennon. His fellow-bartender offered a similar deaf ear.
During the time Lennon was remonstrating with the uninterested dispensers of alcohol at the bar, he heard anguished cries of "Oh, oh" from Corcoran, followed by what he described as a thump. He ran to the steps and got there in time to find Corcoran lying on the floor in a pool of blood, Wall standing over him, with clenched fist. Lennon returned to ask the bartenders
to summon the police, but the bartenders were interested in other affairs. Lennon then called the police himself from a pay station in the tavern, after which he returned to his companion who, unconscious, lay on the floor, blood seeping from his mouth, ears and nose. Fearing Corcoran might be dying, Lennon pleaded that he be taken to the hospital. Wall retorted to Lennon's lamentations and struck him two or three times, adding: "If you don't shut up, I will do the same to you."
The defendant contends on appeal that since no one actually saw Wall deliver the blow or blows which felled Corcoran, the jury's verdict as to what happened was a mere guess. A guess is an airy nothing resting on a non-existent base. The jury's finding that Wall was responsible for Corcoran's injuries was not a guess; it was a conclusion based on unrefuted and irrefutable circumstances. For fifteen or twenty minutes before Corcoran started for the steps, Wall had been acting in a belligerent manner, molesting and interfering with other patrons. He loudly ordered and noisily consumed a beverage not famous for any tranquilizing effect. After consuming the vodka, he drunkenly made his way to the steps and there, without cause, struck at Lennon. A few moments later, as Lennon grieved by the side of the prostrate body of his brother-in-law, Wall struck him again and hurled the threat already quoted: "If you don't shut up, I will do the same to you."
What more could any impartial tribunal need in the way of evidence to fasten upon Wall accountability for Corcoran's condition? He was the only one in the staircase with Corcoran; he was the only one in the tavern who, because of immediately preceding events, was resolved to violence and mischief, he was the only one to openly boast admission for what had occurred.
The tavern-owner presents a rather strange argument in this connection. He says: "Where there is but
one conclusion from an inference it is the duty of the judge to draw that conclusion and not for the jury." But surely the defendant cannot mean to argue that it was for the judge to impose liability on the defendant in a trespass case! In assumed relevancy he cites Anthony Wayne Terrace Housing Association v. Bedio, 186 Pa. Superior Ct. 335. That case is so obviously irrelevant to the point in issue that it would be a waste of time to dwell on it. It is enough to say that there the plaintiff brought an action of ejectment against the defendant to recover certain premises. The court, after hearing evidence, directed a verdict for the ...