Nos. 2011 and 2041 October Term, 1978 Cross-appeal from the Order of the Court of Common Pleas of Philadelphia County entered June 16, 1978 at No. 4625 June Term, 1970, Trial Div., Law.
Marvin W. Factor, Philadelphia, for appellant (at No. 2041) and for appellee (at No. 2011).
Richard A. Kraemer, Philadelphia, for appellant (at No. 2011) and for appellee (at No. 2041).
Cercone, P. J., and Hoffman and Watkins, JJ. Cercone, P. J., concurs in the result.
[ 282 Pa. Super. Page 559]
These are cross appeals from the order of the Court of Common Pleas of Philadelphia County. The plaintiff-appellant, Theodore Prather, appeals from the order granting a new trial for damages only when he failed to submit a remittitur of $75,000 which would have reduced the verdict from $225,000 to $150,000. The defendant-appellant, H-K Corporation t/a Mr. Kleen Bar, appeals from the refusal of post-trial motions and the verdict.
This is a trespass action which was tried before the Honorable Charles Wright and a jury. Theodore Prather sued the owner of the bar for failure to protect him as a patron from assault and battery. The jury found for the plaintiff in the amount of $225,000. Motion for a new trial
[ 282 Pa. Super. Page 560]
and judgment, n. o. v., were denied and the court below found that the defendant had a fair trial. However, without stating any reasons or any statement indicating excessiveness, the court ordered the plaintiff to submit a remittitur in the amount of $75,000. Plaintiff refused and the court below granted a new trial for damages only. This appeal followed on behalf of the plaintiff and the defendant appeals from the denial of his post-trial motions. We will first discuss the appeal of the defendant.
The facts are as follows. Theodore Prather, while in the Mr. Kleen Bar, was shot by another patron, known as Brother Quick. The record discloses that John Taylor and a Winnie Pooh and the owner of the taproom "Mr. Kleen" were behind the bar. The assailant Quick handed a brown bag containing a gun to Taylor, who placed the package behind the bar. Quick was a frequent patron, well known to Taylor, and a known trouble maker. On the date of this incident, Quick had been drinking in the bar for several hours. He was annoying other customers and dancers. At one point he entered into an argument with a Thomas Freiler, another patron. After the argument, Quick left the bar. Sometime later he returned and sat on a stool at the bar. He had a brown paper bag in his possession. He walked up to Taylor, the bar tender, and handed him the brown bag. Taylor put it behind the bar. The bag rolled over on the bar as it was handed to Taylor. He took the bag in the palm of his hand in putting it under the bar. Quick continued to annoy patrons at the bar and the dancers by his remarks. He reopened his argument with Freiler. The bar tender at no time tried to check or control his conduct. The argument was face to face and became an altercation. Nothing was done by the bar tender to stop it. The plaintiff then made an attempt to separate them and Quick called to Taylor for the bag. Taylor was at the other end of the bar. Glasses were being smashed and Quick who now went behind the bar, obtained the bag where Taylor had placed it, took out the gun it contained and shot the plaintiff. Quick immediately left the bar.
[ 282 Pa. Super. Page 561]
The defendant contends that Taylor was not his employee. Taylor testified that he helped wash dishes and glasses at the bar but that he was not paid for this work and testified that he didn't serve drinks that "he just liked doing things like that". A witness testified that Taylor was on duty behind the bar on many occasions prior to the shooting and that he worked in the afternoons and was known as J.T. This witness also testified that he served drinks and took payment for them. He was behind the bar during the whole time of the trouble that resulted in this law suit. Taylor, himself testified that he was working behind the bar for about a year. During all this noisy altercation, he made no effort to intervene or stop it up to the time of the shooting. Whether Taylor was an employee was a factual matter and the evidence and its credibility was for the jury and this record could and did support a finding that Taylor was an employee of the defendant.
This case is governed by Gombar v. Schaeffer, 202 Pa. Super. 282, 195 A.2d 527 (1963) which states, "The rule of law defining what the plaintiff had to prove is contained in Paragraph 348 of the Restatement of Torts which provides: 'A possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the land for such a purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons or animals if the possessor by the exercise of reasonable care could have (a) discovered that such acts were being done and (b) protected the members of the public by (i) controlling the conduct of the third persons or (ii) giving a warning adequate to enable them to avoid the harm'" . . .
J.T. (Taylor) could and should have known that the bag he took from Quick and placed behind the bar contained a gun. The series of arguments and altercations and his knowledge of Quick's propensities for trouble making should have put a reasonable person on notice of impending trouble. As the court below put it: "The ...