KIPP v WONG
Annotate this Case
Download PDF
No. 12378 I N T E SUPREME COURT O THE STATE, O MONTANA H F F 1973 WILLIAM KIPP, P l a i n t i f f and A p p e l l a n t , BILLY WONG, d/b/a The Standard Bar, Defendant and Respondent. Appeal from : D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable C. B. Sande, Judge p r e s i d i n g . Counsel of Record: For Appellant : Joseph P. Hennessey argued, B i l l i n g s , Montana For Respondent : Crowley, Kilbourne, Haughey, Hanson and G a l l a g h e r , B i l l i n g s , Montana Stephen H. F o s t e r argued, B i l l i n g s , Montana - Submitted : November 28, 1973 Decided : Filed : JAN 10 lq4 JAM 10 1 ~ - M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court. This i s an a c t i o n f o r damages brought by p l a i n t i f f William K i p p i n t h e d i s t r i c t c o u r t of Yellowstone County a g a i n s t B i l l y Wong, owner of t h e Standard Bar, a public b a r , a s a r e s u l t of a gunshot wound received by p l a i n t i f f while he was a patron i n defendant's bar. Plaintiff b r i n g s t h i s appeal from a judgment entered by t h e d i s t r i c t c o u r t on a d i r e c t e d v e r d i c t i n favor of defendant b a r owner. On A p r i l 19, 1970, a t about 1:30 a.m., p l a i n t i f f William Kipp was a customer of t h e Standard Bar which i s l o c a t e d on t h e south s i d e of B i l l i n g s , Montana. One Gus Gardiner entered t h e b a r , took a gun from h i s pocket and r a p i d l y f i r e d t h r e e s h o t s . One shot s t r u c k William Kipp i n t h e l e f t s i d e of t h e abdomen causing i n j u r i e s which r e s u l t e d i n t h e removal of h i s l e f t kidney. O e shot s t r u c k and i n j u r e d Charles Linderman, and one shot s t r u c k n Beverly Linderman, h i s w i f e , causing h e r death. The Standard Bar i s a r e t a i l beer and l i q u o r establishment owned by operated by B i l l y Wong s i n c e 1967. O t h e n i g h t of t h e n shootings e i g h t persons were employed i n t h e Standard Bar: the defendant B i l l y Wong, h i s son and a woman a s b a r t e n d e r s , two barmaids, and a three-piece dance band. B i l l y Wong t e s t i f i e d he personally checked i d e n t i f i c a t i o n and kept order i n t h e b a r ; t h a t f i g h t s occasionally occurred i n t h e b a r b u t he was u s u a l l y a b l e t o s t o p them. police, I f he was unable t o s t o p a f i g h t , he would telephone t h e Wong f u r t h e r t e s t i f i e d t h a t he had been a b a r o p e r a t o r s i n c e 1950, and no shots had been f i r e d i n h i s b a r s p r i o r t o A p r i l 19, 1970. Defendant Wong was 59 years o l d , f i v e f e e t seven inches t a l l and weighed 115 pounds a t t h e time t h i s i n c i d e n t occurred. He s t a t e d t h a t i n h i s experience he was b e t t e r a b l e t o keep o r d e r personally by using nonviolent means than when he had employed a It bouncer", because he could u s u a l l y g a i n t h e r e s p e c t of customers who would attempt t o f i g h t a bouncer. He kept a loaded shotgun and p i s t o l behind t h e bar. B i l l y Wong t e s t i f i e d he had known Gus Gardiner a s a customer f o r a "couple of years", during which time Gardiner had never caused t r o u b l e nor given Wong occasion t o o r d e r him t o leave t h e bar. A t about 1 1 : O O p.m. on t h e n i g h t t h e shooting occurred, Gus Gardiner had been i n t h e b a r i n t h e company of two o t h e r men, P h i l l i p Holiday and Colvin Kingfisher. According t o William Smith, p l a i n t i f f ' s witness and a customer of t h e b a r , a d i s p u t e between Kingfisher and an u n i d e n t i f i e d man i n t h e b a r r e s u l t e d i n Kingfisher pushing t h e u n i d e n t i f i e d man out t h e back door and into the alley. Smith t e s t i f i e d he observed a f i g h t which took place i n t h e a l l e y between Kingfisher and t h e u n i d e n t i f i e d man, with Holiday and Gus Gardiner present b u t apparently n o t involved i n the fight. The t r i a l c o u r t granted an o b j e c t i o n t o s m i t h ' s attempted testimony t h a t s h o r t l y a f t e r he r e e n t e r e d t h e b a r he heard a sound l i k e a gunshot from t h e v i c i n i t y of t h e a l l e y . In t h i s connection, a motion i n limine was f i l e d by defendant p r i o r t o t r i a l seeking t o exclude Smith ' s testimony concerning t h e "gunshot soundf'. Smith was permitted t o t e s t i f y , over o b j e c t i o n , t h a t he had known Gardiner f o r f i v e t o seven years and h i s reput a t i o n f o r peace and q u i e t i n t h e community was " p r e t t y bad". J o s e Romero, a bartender a t t h e Arcade Bar l o c a t e d near t h e Standard Bar, t e s t i f i e d he d i d n o t know Gus Gardiner's reputat i o n i n t h e community, b u t h i s r e p u t a t i o n i n t h e Arcade was bad. Defendant's o b j e c t i o n t o Romerots testimony was sustained. John Nelson, a musician i n t h e dance band playing a t t h e Standard Bar t h e n i g h t t h e shootings occurred, t e s t i f i e d t h a t he had a conversation with Billy Wong a f t e r t h e shooting and Wong s t a t e d t h a t Gus Gardiner was always i n t r o u b l e . He f u r t h e r t e s t i - f i e d , however, t h a t B i l l y Wong s a i d nothing t o i n d i c a t e Gus Gardiner had ever caused t r o u b l e i n t h e Standard Bar, and t h a t t h e Standard Bar was peaceful on t h e evening i n question u n t i l t h e time of t h e shooting. B i l l y Wong t e s t i f i e d he was aware t h a t Gus Gardiner had been i n t h e Standard Bar on t h e evening i n q u e s t i o n , b u t was unaware of ~ a r d i n e r ' sinvolvement i n any a l t e r c a t i o n , i n s i d e o r o u t s i d e t h e bar. Wong s t a t e d Gardiner l e f t t h e b a r around 1 1 : O O p.m. and t h a t he d i d n o t see Gardiner again u n t i l 1:30 a.m., when t h e shooting occurred. The only witness who t e s t i f i e d concerning t h e amount of time which elapsed between Gardiner's e n t r y i n t o t h e b a r and h i s f i r i n g t h e s h o t s was Kathryn Rolison, a customer, who s t a t e d : "Q. Would you d e s c r i b e what you saw? A. Seeing t h e man walk i n , he walked around t h e dance f l o o r and stopped a t t h e t a b l e and turned around and smiled, and then turned and pulled a gun out of h i s pocket and s t a r t e d shooting. The p o i n t number 2 [ r e f e r r i n g t o a diagram] shows "Q. about where he was standing when he s h o t ? A. Yes. "Q. And t h a t was r i g h t next t o your t a b l e ? Yes. A. o "Q. H w long d i d he stand t h e r e before he p u l l e d t h e gun o u t ? A. J u s t momentarily. Q. Did he look a t you? A. "Q. What was h i s expression? of smiled and turned around. "Q. "Q. A. What d i d he do then? A. Yes. A. Well, he j u s t kind He s t a r t e d shooting. Did he say anything before he s t a r t e d shooting? No. A. "Q. Did t h e r e appear t o be anybody with him? "Q. Did he f i r e t h e s h o t s i n quick succession? No. A. Yes. II Other witnesses t e s t i f i e d t h e shooting appeared t o coinc i d e with an argument o r f i g h t between two women. However, no connection between t h e i n c i d e n t s was e s t a b l i s h e d . William Kipp, Charles Linderman and Beverly Linderman, t h e persons s t r u c k by t h e t h r e e b u l l e t s , d i d not know Gus Gardiner. ~ e f e n d a n t ' smotion f o r d i r e c t e d v e r d i c t was granted by the t r i a l c o u r t a t t h e c l o s e of t h e evidence. P l a i n t i f f made a subse- quent motion for leave of the court to reopen the case and permit an additional witness to be called, a Miss Devorah Howe. Miss Howe was one of the women fighting at the time the shooting occurred. An excerpt from a written statement she made to the Billings police on June 11, 1970, is contained in the record and indicates Miss Howe heard the shots but did not see the shooting. This motion and plaintiff's motion for a new trial were denied. On appeal, plaintiff assigns six issues for review: Whether the trial court erred: 1) In directing a verdict for the defendant. 2 ) By permitting the defendant to make an oral motion on the day of trial to limit the plaintiff's voir dire and proof. 3) In limiting the testimony of witness William Smith to what he saw and excluding what he heard. la in tiff's 4) In denying motion to reopen his case. 5) In denying plaintiff's motion for a new trial. 6) In permitting the dcifendant to voir dire the witness William Smith in the absence of the jury. Concerning the first issue, plaintiff relies on Nevin v. Carlasco, 139 Mont. 512, 514, 365 P.2d 637, wherein the Court stated : It Turning to the remaining specifications of error, we find in 30 Arn.Jur., 5 523, p. 823, the general obligation of duty and liability to patrons on the premises as follows: 'It has been held that the proprietor of a liquor establishment for on-premises consumption does not hold himself out as an insurer of the safety of his patrons and is not bound to the same degree of care toward them as devolves on innkeepers and carriers, although he does owe them the duty of exercising reasonable care to protect them from injury at the hands of a fellow patron, and of seeing to it that a patron is not injured either by those in his employ or by drunken or vicious men whom he may choose to harbor. 1 IIReviewing leading cases from other'jurisdictions, [citing cases], we find the general rule to be that the duty of a tavern keeper to protect a patron from injury by another arises only when one or more of the following circumstances exist: (1) A tavern keeper allowed a person on the premises who has a known propensity for fighting. (2) The tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others. (3) The tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others. ( ) The tavern keeper failed to stop a fight 4 as soon as possible after it started. (5) The tavern keeper failed to provide a staff adequate to police the premises. ( ) The tavern keeper tolerated disorderly 6 conditions. I1 See also: Ganger v, Zook, 141 Mont. 214, 377 P.2d 101. Nevin was cited by the California court in Slawinski v. Mocettini, 31 Cal.Rptr. 613, 616, 217 C.A.2d 192, quoting the six listed circumstances determinative of negligence. The facts in Slawinski were analogous to those in the instant case: Slawinski was in a bar owned by Mocettini and had a scuffle with one Wilson, after which Slawinski remained in the bar and Wilson left. About thirty minutes later Wilson returned with a gun and killed Slawinski. The Slawinski case resulted in a jury verdict for slawinski's survivors, after which the trial court granted the bar owner's motion for a new trial. The California District Court of Appeals affirmed the new trial order, stating in pertinent part: "While the standard of care is that of an ordinarily prudent person, yet it must be realized that reasonable care is a relative term in that the amount of care must be commensurate with the risks and danners attending the activity being pursued. * * * The Zest of whether the duty of reasonable care is discharged is the probability or foreseeability of injury to a plaintiff. 1I In the instant case, although there was conflicting evidence as to whether Wilson had a reputation as a hot tempered person, it was uncontroverted that the respondents and their employees were not aware of this fact and had never experienced any trouble with Wilson. * * * There is no evidence that respondents had any way of knowing that Wilson would return." (Emphasis added). In the instant case, there is the testimony of William Smith, Jose R-omero,and John Nelson tending to indicate that Gus Gardiner had a bad reputation in the community for peace and quiet. However, t h e i r testimony d i d not d i r e c t l y c o n t r a d i c t B i l l y Wong's testimony t h a t Gus Gardiner had never caused t r o u b l e i n t h e Standard Bar p r i o r t o t h e n i g h t i n question. Even assuming, arguendo, t h e evidence was s u f f i c i e n t t o c r e a t e a f a c t u a l i s s u e a s t o whether Wong should have had n o t i c e of Gardiner's dangerous p r o p e n s i t i e s , t h a t i s s u e i s rendered moot i n t h e f a c e of t h e uncontradicted evidence t h a t Wong had no way of knowing Gardiner would, o r d i d i n f a c t , r e t u r n t o t h e b a r ; a n d , t h a t Gardiner commenced shooting witho u t any a p p r e c i a b l e l a p s e of time from when he entered t h e b a r and without any t h r e a t e n i n g words o r a c t s which might have c o n s t i t u t e d a warning t o Wong o r h i s employees. The fundmental p r i n c i p l e of t o r t law involved i s analogous t o t h e body of law s e t f o r t h i n t h e various "business i n v i t e e s l i p and f a l l " cases decided by t h i s Court, i.e.: t h e r e i s no negligence u n l e s s (1) t h e dangerous o r injury-causing condition was c r e a t e d by t h e p r o p r i e t o r ; (2) t h e p r o p r i e t o r had knowledge of t h e dangerous o r injury-causing c o n d i t i o n ; o r (3) t h e dangerous o r i n j u r y causing c o n d i t i o n was of such n a t u r e and d u r a t i o n t h a t t h e p r o p r i e t o r i s charged with c o n s t r u c t i v e n o t i c e t h e r e o f . McEnaney v. C i t y of Butte, 43 Mont. 526, 117 P. 893; Demaree v. Safeway S t o r e s , Inc., M nt o . , 508 P.2d 570, 30 St.Rep. 405. ~ i k e w i s e , t h e f a c t u a l i s s u e a s t o whether Wong employed an adequate s t a f f t o p o l i c e h i s premises i s rendered moot under t h e facts. I n Weihert v. Piccione, 273 Wisc. 448, 78 N.W.2d 757,762, c i t e d by t h i s Court i n Nevin, t h e Wisconsin Supreme Court determined an analogous i s s u e i n t h e defendant's f a v o r , s t a t i n g i n p e r t i n e n t part : h he [ t r i a l ] c o u r t was a l s o of a mind t h a t t h e f a i l u r e t o have provided 'guards' o r 'bouncers' i n t h e establishment d i d not c o n s t i t u t e c a u s a l negligence, f o r t h e reason t h a t had such been ~ r o v i a e d , i t cannot be assumed t h a t they would have prevented t h e a s s a u l t which occurred i n stanetly and without warning. " (Emphasis added). I n order f o r t h e t r i a l c o u r t t o submit t h e i s s u e of l i a b i l i t y t o t h e j u r y , t h e p l a i n t i f f must produce evidence which, i f viewed i n t h e l i g h t most favorable t o p l a i n t i f f , demonstrates t h a t defendant was somehow n e g l i g e n t i n t h e performance of a duty owed p l a i n t i f f and t h a t defendant's negligence was t h e proximate cause of p l a i n t i f f ' s i n j u r y . Jackson v. William Dingwall Ca., 145 Mont. 127, 399 P.2d 236. Here, t h e record does not r e v e a l f a c t s which would demonstrate t h a t defendant caused t h e condition o r t h a t he had knowledge of i t . The injury-causing c o n d i t i o n was n o t of such a n a t u r e o r d u r a t i o n t h a t defendant could have been charged w i t h c o n s t r u c t i v e n o t i c e . The second, t h i r d and s i x t h appeal i s s u e s a l l r e l a t e t o evidence o f f e r e d by p l a i n t i f f through witness William Smith t o t h e e f f e c t t h a t a s e p a r a t e shooting apparently occurred i n t h e a l l e y behind t h e Standard Bar a t about 1 1 : O O p.m. question. on t h e n i g h t i n There was no proof o f f e r e d a s t o whether t h e sound heard by Smith a c t u a l l y was a gunshot, and, i f so, who f i r e d t h e shot. W concur with t h e t r i a l c o u r t ' s view t h a t p l a i n t i f f f a i l e d e t o demonstrate t h e probative value o r relevance of t h i s o f f e r e d evidence. W f i n d t h e t r i a l c o u r t a c t e d reasonably and w i t h i n e i t s sound d i s c r e t i o n i n g r a n t i n g t h e p r e t r i a l motion t o exclude, i n examining witness Smith o u t s i d e t h e presence of t h e jury,and i n excluding p o r t i o n s of s m i t h ' s testimony r e l a t i n g t o gunshot sounds. Concerning t h e f o u r t h i s s u e on appeal--denial of p l a i n t i f f ' s motion t o reopen h i s case-- t h i s Court s t a t e d i n P i c k e t t v. Kyger, 151 Mont. 87, 94, 439 P.2d 57: " P l a i n t i f f a s s i g n s a s e r r o r t h e r e f u s a l of t h e t r i a l c o u r t t o permit h e r t o reopen h e r c a s e a t t h e conclusion of a l l t h e evidence. The record d i s c l o s e s t h a t t h i s motion was made a f t e r motion f o r d i r e c t e d v e r d i c t had been made and argued by counsel, and t h a t p l a i n t i f f sought t o add t h e testimony of one witness a s an expert on t h e exp l o s i v e q u a l i t i e s of gas. This w i t n e s s ' s t e s t i mony was a v a i l a b l e t o p l a i n t i f f b e f o r e t h e c l o s e of evidence i n t h e c a s e and no showing was made a s t o t h e q u a l i f i c a t i o n s of t h e witness o r t h e testimony t o be e l i c i t e d from him. O t h i s b a s i s , n t h e t r i a l c o u r t denied p l a i n t i f f ' s motion t o reopen h e r case. O r d i n a r i l y n e i t h e r d e n i a l of reopening f o r testimony of a witness a v a i l a b l e during r e c e p t i o n of evidence a t t r i a l n o r d e n i a l of reopening absent a showing of a w i t n e s s ' s q u a l i f i c a t i o n s and t h e m a t e r i a l i t y of h i s testimony c o n s t i t u t e s an abuse of d i s c r e t i o n by t h e t r i a l c o u r t . There being no s p e c i a l circumstances shown taking t h e i n s t a n t c a s e out of t h e operation of t h e general r u l e , we hold t h e r e was no abuse of d i s c r e t i o n i n r e f u s i n g t h e motion of p l a i n t i f f t o reopen. I I See a l s o : Nadeau v. Texas Company, 104 Mont. 558, 69 P.2d The trial record discloses no offer of proof by plaintiff concerning the failure to call Miss Devorah Howe as a witness during the reception of the evidence. Concerning the fifth issue on appeal--denial of plaintiff's motion for new trial--the motion was made on these grounds: 1 Irregularity in the proceedings of the court and adverse ) party, by which plaintiff was prevented from having a fair trial. Surprise which ordinary prudence could not have guarded 2) against. 3) Insufficiency of the evidence to justify the decision. 4) Error in law occurring at the trial excepted to by the plaintiff. Plaintiff's arguments in support of his motion for a new trial have heretofore been discussed in this opinion with the exception of ground number 2 which relates to surprise resulting from the testimony of Kathryn Rolison at trial, a portion of which has been quoted heretofore. Kathryn Rolison made a statement to the Billings police department on April 19, 1970, which included this pertinent excerpt: h his male walked very close to our table. I would say from two to three feet from our table. He stood there for approximately one minute and at the time he smiled at me and I smiled back. I saw this male take a small gun from his right pocket. Holding the gun about belt high he started shooting. He held the gun in front of him and I could see the sparks fly every time he shot. He fired them very fast. I would estimate that he shot five or six shots. I was stunned and just couldn't believe it.'' The police report was available and Kathryn Rolison was available for interview prior to the trial. Kathryn ~olison's testimony at trial was consistent with her statement to the police. It does not appear in the trial record that plaintiff ever sought to interview this witness or requested a continuance after her testimony was given. We find the trial court acted within its sound discretion in denying plaintiff's motion for a new t r i a l . Tigh v. College Park R e a l t y Co., 149 Mont. 358, The judgment of t h e d i s t r i c t c o u r t i s affirmed. Jfistices.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
