Catlett v. Stewart , 304 Ark. 637 ( 1991 )

Donald L. Corbin, Justice.

Appellant, S.G. Catlett d/b/a King’s Inn, appeals the denial of its motion for directed verdict in a jury trial which resulted in an award of damages to appellees Fred Stewart, Lee Ann Stewart, and Steaven E. Miller. We find no error and affirm.

The action arose out of a shooting that occurred February 9, 1986, on the premises of the King’s Inn in Searcy, Arkansas. Merle Fritts, the husband of Erma Fritts who was an on-duty employee of the appellant, shot the appellees following a domestic dispute with his wife. Appellees filed a negligence suit against appellant claiming that appellant had a duty of care to act reasonably in this situation and that appellant breached that duty vicariously through his employees. Appellant argued there was no duty owed to appellees or, in the alternative, the duty was satisfied by the actions taken by the employees. After receiving instructions relating to an ordinary duty of care, the jury returned a verdict awarding damages to appellees.

Appellant makes but one assignment of error in this appeal and that is the trial court’s failure to grant its motion for directed verdict. That is the sole issue before us. Because this case is somewhat confusing, perhaps it is equally important to state what appellant does not assign as error. Appellant does not challenge the giving of certain jury instructions regarding a duty of care.

Because, however, the concept of duty makes a peculiar appearance in this case, we feel it is important to relate some events that occurred at trial. After an objection by appellant to the giving of jury instructions relating to a duty of care, the trial judge made his determination of law that an ordinary duty of care was owed in this cáse. Because there was indeed a duty owed here, the trial judge was correct in denying the motion for directed verdict and then presenting the case to the jury for its determination of the various factual elements. The language of Adams v. Browning, 195 Ark. 1040, 115 S.W.2d 868 (1938), regarding the jury’s task of making factual determinations, was cited with approval in Pitts v. Greene, 238 Ark. 438, 382 S.W.2d 904 (1964), and bears repeating here:

“Under our system of jurisprudence, it is the province of the jury to pass upon the facts. It is not only their privilege but their right to judge of the sufficiency of the evidence. The credibility of the witnesses, the weight of their testimony, and its tendency, are matters peculiarly within the province of the jury. If there is any substantial evidence it is the duty of the court to submit the matter to the jury.”

Pitts, 238 Ark. at 441, 382 S.W.2d at 906.

That is what occurred in this case. The judge made a determination of law that appellant owed appellees an ordinary duty of care to act reasonably under the circumstances. The judge proceeded to instruct the jury on the remaining factual elements of negligence, and the jury rendered its verdict accordingly. Thus, the task before us in this case is to review the record, as it is presented to us by the parties and described in the preceding paragraph, and determine if there is sufficient evidence to support the jury’s verdict.

An appeal of a denial of a motion for a directed verdict is considered a challenge to the sufficiency of the evidence. Our standard of review in this situation is quite high indeed. We view all the evidence in the light most favorable to appellees, and if there is any evidence sufficient to warrant the verdict, we affirm the trial court’s refusal to direct a verdict. First Commercial Bank, N.A. v. Kremer, 292 Ark. 82, 728 S.W.2d 172 (1987).

Generally, the facts of this case are not disputed by the parties. Rather, it is the interpretation of the facts that is disputed here. A review of the facts and all the evidence presented at trial as viewed most favorably to appellees reveals that there is sufficient evidence to support the verdict. Accordingly, we affirm the trial court’s refusal to grant a directed verdict.

The evidence reveals that Merle and Erma Fritts were married in 1983. Merle later became disabled by a heart attack and subsequent back surgery. Thereafter, he began to drink heavily. According to Erma, while he was drinking he was continually hitting her. On one occasion, he threw beer in her face and verbally abused her, forcing her to run to a neighbor’s home while he roamed outside with a gun. On another occasion, Merle choked Erma with such force that she had to seek medical treatment.

Merle Fritts appeared at the King’s Inn at about twenty minutes before 7:00 a.m. on the day of the shooting. He had a conversation with Nancy Blackshire, who was on duty as the desk clerk. Erma was scheduled to relieve her at 7:00 a.m. Ms. Blackshire testified that she could smell liquor on Merle’s breath. Prior to that morning, Erma told Ms. Blackshire that Merle drank heavily and that she was afraid of him when he was drinking. Ms. Blackshire was also aware of the parties’ divorce action.

Erma arrived at work at the King’s Inn at approximately 6:50 a.m. She observed that Merle appeared to be drunk or that something was wrong with him. She said she was not fearful until Merle indicated he was going to grab her by the hair of her head and drag her out of the motel. She said he had a wild appearance when he made this threat. He also threatened to blow her head off. She testified that she then asked Dub Throckmorton, manager of the restaurant next to the motel lobby and a life-long friend of Merle’s, to invite Merle in for coffee and to talk to him. She testified that she could have “eased in the back and used the phone but I didn’t think nothing about that.”

Throckmorton saw that Merle was angry and obviously intoxicated. He knew from previous experience that Merle was a troublemaker when he had been drinking. He said Erma asked him to call the police, but he did not because he thought she should. After Merle threatened to blow Erma’s head off, he talked with Merle for about twenty minutes. Each time he thought he had Merle calmed down, Erma would interject a remark that would again anger Merle, causing him to become more vulgar and abusive.

At about 7:20 a.m., after Throckmorton’s attempts to calm Merle, Merle left the restaurant, got a shotgun from his truck, and returned to the motel. Throckmorton observed Merle’s movements and asked appellee Fred Stewart, who was drinking coffee in the restaurant, to help him stop Merle. Stewart agreed and gave Throckmorton the telephone number of the police department. Merle entered the motel lobby and began shooting, severely injuring Fred Stewart and Steaven Miller. Throckmorton called the police who arrested Merle shortly after their arrival.

Twelve reasonable jurors, who lived in the community where the shooting occurred, acting under the instructions by the court, reached the reasonable conclusion that Erma Fritts did not meet her duty to exercise ordinary care to prevent the harm from occurring, a harm that in their judgment a reasonable person should or could have foreseen.

Generally, if there is any conflict in the evidence, or we find the evidence is not in dispute but is in such a state that fair-minded people might have different conclusions, then a jury question is presented, and a directed verdict will be overturned. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980). It follows that the reverse is also true; if there is evidence about which fair-minded people might make different conclusions, then a jury question is presented and a denial of a motion for directed verdict will be affirmed. When applying the law set out above to the aforementioned factual situation in this case, we are unable to say there is no evidence of negligence on appellant’s part to support the jury’s verdict. Accordingly, we hold that, based on the evidence presented and instructions given to the jury, there was sufficient evidence to support the verdict for appellees. We therefore affirm the trial judge’s denial of appellant’s motion for directed verdict.

ANALYSIS OF NEGLIGENCE

The question of what duty, if any, appellant owed to the appellees is answered as early as the case of Ford v. Adams, 212 Ark. 458, 206 S.W.2d 970 (1947), where we recognized that a hotel is not an insurer of the safety of its guests, but that it is charged with the duty of taking all precautions for the protection of its guests which reasonable prudence and ordinary care would suggest. There, we established that as a matter of law the appellant hotel owed a duty of ordinary care to the appellees. Given the facts of this case, it is clear appellant owed appellees a duty of ordinary, care.

The determination of the remaining factual elements were within the province of the jury. See Stacks v. Arkansas Power and Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989); Keck v. American Employment Agency, 219 Ark. 294, 652 S.W.2d 2 (1983), (questions of causation and foreseeability may be questions of fact); Linxwiler v. El Dorado Sports Center, 233 Ark. 191, 343 S.W.2d 411 (1961), (the determination of the satisfaction of a duty of care is a question for the jury).

With respect to the foreseeability issue, appellant argues it was unforeseeable that Merle Fritts would act as he did on the morning in question. Appellees argue, on the other hand, it is not necessary that the particular kind of harm be foreseen. We agree with appellees. We held in Bergetz v. Repka, 244 Ark. 60, 63, 424 S.W.2d 367, 369 (1968) that:

“It is not,” . . . “necessary that the particular injury should have been foreseen. . . . ‘Doubtless the particular situation might not have been foreseen, but this was not essential to making out a charge of negligence. Accidents as they occur are seldom foreshadowed; otherwise many would be avoided. If the act or omission is of itself negligent and likely to result in injury to others, then the person guilty thereof is liable for the natural consequences which occurred, whether he might have foreseen it or not.’ ”

Clearly, the fact that Erma Fritts did not foresee that Merle Fritts would use a gun and harm other people did not resolve the issue of Erma’s negligence. Her negligence is properly measured by whether a reasonable person would have foreseen a risk of harm in Merle’s conduct.

FIREMAN’S RULE

Within their argument, appellant argues that the “fireman’s rule” is applicable to appellee Stewart. This rule merely holds that fire fighters and police officers who enter premises in the execution of their official duties do so as licensees, under a privilege conferred by legal authority, usually under circumstances of emergency. Prosser and Keeton on the Law of Torts, § 61, pp. 429-431 (5th ed. 1984). We have not adopted this rule in Arkansas. Fred Stewart, in contrast, entered the King’s Inn on February 9 as a private citizen and business customer of the restaurant, for the purpose of drinking coffee, reading a magazine, and meeting friends, as he was accustomed to doing several times each week. Although Mr. Stewart was a constable for the city of Kensett, Arkansas, at the time of his injuries, his official authority and responsibilities did not extend beyond the limits of that township.

(a) Each constable shall be a conservator of the peace in his township and shall suppress all riots, affrays, fights, and unlawful assemblies, and shall keep the peace and cause offenders to be arrested and dealt with according to law.

(b) If any offense cognizable before a justice of the peace in his township is committed in his presence, the constable shall immediately arrest the offender ....

Ark. Code Ann. § 16-19-301 (1987).

Appellees contend that Fred Stewart had no legal authority or duty to arrest and restrain Merle Fritts, and his attempt to intercede when Fritts returned to the motel with a firearm was motivated entirely by humanitarian concerns, as the court properly instructed the jury. We agree.

Affirmed.

Newbern and Brown, JJ., dissent.