This case involves an action against the operator of a tavern for injuries sustained by a patron as a result of an assault committed upon the defendant’s premises. The plaintiff had a verdict. The defendant appeals from an order denying his motion for judgment notwithstanding the verdict or for a new trial and from the judgment.
At about 3 p. m. the plaintiff entered the tavern. He exchanged words with other patrons of the tavern and, after some conversation with the Weiks and the Acldands, he left the premises, saying that he was going to get a policeman. It appears that he actually found a police officer and reported to him that the Weiks were permitting Holte, an elderly man, to spend his money buying beer for them and that Weik should be thrown in jail. The police officer declined to do anything, after which plaintiff said, “I ought to punch him in the snoot.” After an absence from the premises for about 20 minutes, plaintiff returned. During this time Weik was pacing back and forth in the bar and in statements to others made threats against the plaintiff. The general atmosphere in the tavern at that time was one of trouble and agitation. After plaintiff returned to the bar, he renewed his conversation with Weik during the course of which a struggle began. Both men fell to the floor. The barmaid who was on duty started around the bar to see what was happening; and as plaintiff was about to get up from the floor and was on his knees, Melvin Ackland, who had been standing by but up until that moment had not been a part of the fracas, struck him a blow on the left side of his head which knocked him backwards. As a result of this assault the plaintiff suffered severe and permanent injuries.
The defendant’s first contention is that the operator of a 3.2 beer tavern is not liable to a patron of his establishment for injuries suddenly and unexpectedly inflicted upon him by another patron under circumstances where the operator could not have prevented the injuries by the exercise of reasonable care. It is unnecessary to labor this point further than to state that the issue here is controlled by our decision in Windorski v. Doyle,
“* * * A patron at a 3.2 bar has a right to rely on the belief that he is in an orderly house and that its operator, personally or by his delegated employee, will exercise reasonable care ‘to the end that the doings in the house shall be orderly.’ See, 30 Am. Jur., Intoxicating Liquors, § 609; Curran v. Olson,88 Minn. 307 , 308,92 N. W. 1124 , 60 L. R. A. 733; Mastad v. Swedish Brethren,83 Minn. 40 ,85 N. W. 913 , 53 L. R. A. 803; Christianson v. Hager,242 Minn. 41 ,64 N. W. (2d) 35 ; Klaman v. Hitchcock,181 Minn. 109 ,231 N. W. 716 ; Sylvester v. Northwestern Hospital,236 Minn. 384 , 389,53 N. W. (2d) 17 , 20; Cherbonnier v. Rafalovich (D. Alaska)88 F. Supp. 900 ; Annotation, 29 A. L. R. (2d) 911; Windorski v. Doyle,219 Minn. 402 ,18 N. W. (2d) 142 .”
We further observed that (
“* * * ‘authorities recognize that drunken behavior is unpredictable; also that slight irritations, real or imaginary, may cause outbursts of anger and lead to aggressive acts.'" 1
The presence of an intoxicated person upon the premises immediately exposes the proprietor to the hazards of liability resulting from the unpredictable conduct of such person and, when it appears that such intoxicated person might cause a disturbance or harm to other patrons, the proprietor is obliged to take some affirmative action to maintain order on the premises by demanding that such person leave or by calling authorities to enforce such demand.
Here the evidence establishes that Carl Weik, his wife, and Melvin Ackland had been on the premises from 9 a. m. until approximately
The defendant, however, contends that the authorities just cited do not control because the plaintiff was a licensee and not an invitee to whom he owed the duty to exercise reasonable care to protect him from injury at the hands of other patrons. The defendant argues that the plaintiff at the time of his injury was not upon his premises as an invitee or business patron but that he came there to pursue an argument with Weik. He asserts that plaintiff was a licensee as a matter of law.
It appears that in Yeager v. Chapman,
“A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.”
The defendant does not contend that the trial court did not state the rule correctly in its instructions.
Since the crucial factor in determining plaintiff’s status on defendant’s property at the time of injury is the purpose for which the plaintiff came upon the premises, it is necessary to examine the record as it relates to plaintiff’s position as a licensee or invitee at the time the injury occurred. While on the day the injuries occurred the plaintiff and defendant Weik were not on friendly terms, it appears that they had been acquaintances for some considerable time. On this particular occasion the plaintiff in his conversations with Weik had been critical of the latter’s conduct. Apparently he objected to Ben Holte spending
The contention of the defendant that the plaintiff was contributorily negligent as a matter of law encompasses the issue as to the plaintiff’s status upon the premises which we have just discussed. It is argued that plaintiff was contributorily negligent by remaining upon the premises after he was told that Weik had made threats and derogatory statements concerning him and that he was contributorily negligent thereafter in continuing his talk with Weik. The trial court was fully cognizant of the importance of this issue and properly submitted the question of the plaintiff’s alleged contributory negligence to the jury. We agree with the trial court that the plaintiff was not contributorily negligent as a matter of law. While it might have been
The next point raised by the defendant Truesdell is that the court erred in denying his attorney the right to cross-examine the defendant Weik after he had testified as a witness in his own behalf. The precise question raised here is whether a defendant may cross-examine his codefendant in a personal injury action under circumstances where they are on the same side of the case and their interests are not adverse. There are authorities to the effect that a defendant’s cross-examination of his codefendant should be permitted, at least in so far as such cross-examination pertains h> matters brought out on direct examination. Annotation, 43 A. L. R. (2d) 1000. The question has been considered but not decided in two Minnesota cases.
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The right of cross-examination is an inviolate right, but it presupposes adversity between the party wishing to cross-examine and the party for whom the witness has been called to testify. The right, which is of fundamental importance in the discovery of truth in the trial of a case, is intended for the use of an “opponent” (1) for the pujóse of the further examination of a witness proffered by the opposite side so as to bring to light qualifying or contradictory facts and circumstances not disclosed by the witness on direct examination and (2) for the further purpose of developing those facts which may diminish the personal trustworthiness or credit of the witness which may have remained undisclosed on direct examination. 5 Wigmore, Evidence (3
The latitude to be allowed in cross-examination on the merits is largely within the discretion of the trial court, and its action will not be reversed on appeal except for a clear abuse of discretion. Here we think the court did not abuse its discretion in denying the right of the defendant Truesdell to cross-examine his codefendant Weik. While they were codefendants, they were not opponents and Weik was not an adverse witness. At the outset of the trial the court asked counsel for defendant Truesdell:
“The Court: It is my understanding, Counselor, that there is no question but that there is no adversity of interest, I mean, there is no adversity of interest between the defendants as to any of the issues.
“Mr. Mahoney: That is right.”
Later on in the trial, when the court considered plaintiff’s objection to the right of Truesdell’s counsel to cross-examine, the court said:
“The Court’s position is that unless there can be some showing made to the Court that there is some adversity of interest, or some hostility in this witness that the Court has been unable to observe up to the present time, that counsel will be denied the right to cross-examine.”
No showing whatsoever was made that the defendant Weik was adverse to the defendant Truesdell. Under the circumstances we cannot say that in denying the right to cross-examine the court committed prejudicial error which would require a new trial.
It is next contended that the court erred in permitting evidence as to the reasonable value of the plaintiff’s services. The plaintiff was a small contractor operating as Fred Klingbeil & Son. He built homes
The establishment of damages growing out of loss of income, which is an item of special damage, and the diminution of ability to carry on usual activities in connection with one’s work, which is an item of general damage, often presents troublesome problems of proof. The apparent difficulties encountered in proving diminution of earning capacity have now been largely solved by our decision in Wilson v. Sorge,
It remains for us to consider here the problem which the self-employed plaintiff faces in establishing proof of loss of income to the date of trial as an item of special damage. In Wilson v. Sorge, we stated (
“* * * Loss of earnings is an item of special .damages. As such, the loss must be specifically pleaded and proved.”
The precise issue here deals with evidence which is competent to prove special damages. It is recognized that frequently, but not necessarily in every instance, the same evidence goes to the proof of both the general and special damages. However, since loss of income to date of trial must be established by particular proof the same as other items of special damage, it is necessary that more specific evidence be submitted on that issue. In Piche v. Halvorson,
“* * * the nature and extent of the business in question may be considered, and the services of the plaintiff therein, in order to ascertain the value of such lost services, for the value of such personal services are properly considered in this connection.”
It should be recognized that there are numerous factors to be considered in arriving at loss of income, which factors vary according to the circumstances in each case. It is for the trial court in the exercise of its sound discretion to determine what elements of proof may be considered as bearing upon the item of loss of income, depending upon the circumstances of each case, and that discretion will not be disturbed unless it appears from the record that it has been clearly abused.
We think the court here properly exercised its discretion in permitting opinion evidence as to the reasonable value of plaintiffs services as bearing upon his loss of income. The plaintiff had been engaged in business for himself prior to the injury but the business had fallen off since that time and there is evidence in the record which indicates that this was due to his inability to carry on the work. Clearly then he had established the fact that he had sustained special damages up to
The plaintiff had a verdict for $32,000. The defendant contends that this verdict is excessive, unreasonable, and awarded under the influence of passion and prejudice. It appears from the record that plaintiff is a man 65 years of age; he was in excellent health, active, and working at the time of the injury. He had expenses to the date of trial of $2,133.95 for hospital and medical attention. He had lost 17 months of earnings up to the date of trial, which could be fairly estimated at another $4,250. He suffered a complete aphasia and is unable to talk, and his right arm and leg are paralyzed. The condition is permanent, and there is evidence that he will need constant care and attention the rest of his life. Under the circumstances we do not think the verdict is excessive.
Numerous other objections have been asserted. We have fully considered all of them and are of the view that they are without sufficient substance to require further discussion.
Affirmed.