Elder v. Fisher

• Citation: 247 Ind. 598,217 N.E.2d 847
• Decision Date: 22 June 1966
• Docket Number: No. 30990,30990
• Parties: John J. ELDER, as Guardian of Ann Kathryn Elder, a minor, Appellant, v. Ray FISHER, d/b/a Fisher's Pharmacy, Appellee.
• Court: Supreme Court of Indiana

Page 847

217 N.E.2d 847

247 Ind. 598

John J. ELDER, as Guardian of Ann Kathryn Elder, a minor, Appellant, v. Ray FISHER, d/b/a Fisher's Pharmacy, Appellee.

No. 30990.

Supreme Court of Indiana.

June 22, 1966.

James E. Rocap, Jr., Karl J. Stipher and Daniel E. Johnson, Indianapolis, for appellant.

H. William Irwin and Samuel A. Fuller, Indianapolis, Murray, Stewart, Irwin & Gilliom, Indianapolis, of counsel, for appellee.

RAKESTRAW, Chief Justice.

This case comes to us on petition to transfer from the Appellate Court under the Acts of 1933, ch. 151, § 1, p. 800, being Burns' Ind.Stat.Anno. § 4--215 (1946 Repl.). See Elder v. Fisher (1965), 205 N.E.2d 335 for the opinion of the Appellate Court.

This is an action for personal injuries. The plaintiff is suing on behalf of his ward, a minor child, who was rendered a paraplegic from the waist down in an automobile accident. In general, the facts alleged are that the defendant, a retail drugist, sold liquor to one Robert R. Hellwig, a boy 17 years of age. The plaintiff alleges that the boy then drank the liquor, became drunk, drove an automobile, and as a result was involved in the accident in which the plaintiff's ward was injured.

The defendant filed partial demurrers and a general demurrer to the plaintiff's complaint. The trial court sustained the general demurrer to both paragraphs of the plaintiff's complaint, and the plaintiff declined to plead over. The plaintiff appeals from the sustaining of the demurrer to his complaint.

The second paragraph of the plaintiff's complaint is based upon § 20, ch. 13, of the Acts of the Indiana General Assembly of 1875 (Spec. Sess.). This section in brief provides for civil liability on the part of any person illegally selling intoxicating liquor for any injury or damage on account of the use of such liquor. The appellant maintains 'with considerable trepidation' that this act may still be effective as to the civil liability provision. Some doubt is expressed in the annotation in the 1956 edition of Vol. 4, Part 2, § 12--610 of Burns' Ind.Stat.Anno.

As to this paragraph of complaint, we are of the opinion that the appellant's 'considerable trepidation' is justified. Section 30, ch. 119 of the Acts of 1911; § 40, ch. 4 of the Acts of 1917, and § 46, ch. 48 of the Acts of 1925 all state 'All laws and parts of laws in conflict herewith are hereby repealed.' All of the acts involved above dealt with the regulation of the sale and use of alcoholic beverages, and purported to cover the entire field of such regulation. Therefore, in our opinion, § 20, ch. 13 of the Acts of 1875 (Spec. Sess.), supra, has been repealed.

However, it is on Paragraph I of his complaint that the plaintiff primarily relies in this action. Paragraph I attempts to state a common law action of negligence. Among the allegations of negligence in the complaint were the following:

'(a) That the defendant by and through his employee, who is unknown to the plaintiff did sell an alcoholic beverage to one Robert R. Hellwig, who was then and there under the age of twenty-one (21) years, to-wit: seventeen (17) years of age, when he knew or in the exercise of ordinary care should have known that said Robert R. Hellwig was under the age of twenty-one (21) years.

(b) That the defendant, by and through his employee, who is unknown to the plaintiff, did sell an alcoholic beverage to Robert R. Hellwig, a minor, under the age of twenty-one (21) years, without making inquiry as to the age of said Robert R. Hellwig when he knew or in the exercise of ordinary care could have determined the age of said Robert R. Hellwig.

(c) That said defendant, by and through his employee, who is unknown to the plaintiff, did sell an alcoholic beverage to Robert R. Hellwig, a minor under the age of twenty-one (21) years in violation of Chapter 226, Sec. 31 of the Indiana General Assembly for year 1935, as amended.

(d) That said defendant, by and through his employee, who is unknown to the plaintiff, did sell an alcoholic beverage to Robert R. Hellwig, a minor, under the age of twenty-one (21) years in violation of Chapter 13, Section 13 (Special Session) of the Articles of the Indiana General Assembly for the year 1875, as amended.

(e) That said defendant, by and through his employee, who is unknown to the plaintiff, did sell an alcoholic beverage to said Robert R. Hellwig, when he knew or in the exercise of ordinary care should have known that said Robert R. Hellwig was under the age of twenty-one (21) years and that because of his tender years, the consumption of said alcoholic beverage would induce intoxication and conduct constituting an unreasonable risk.

(f) That said defendant, by and through his employee, who is unknown to the plaintiff, did sell an alcoholic beverage to said Robert R. Hellwig, when he knew or in the exercise of ordinary care should have known that said Robert R. Hellwig had at his disposal an automobile which he intended to operate and that the consumption of said alcoholic beverage by said minor would induce intoxication and thereby render his operation of said vehicle dangerous to the plaintiff herein.

(g) That said defendant, by and through his employee, who is unknown to the plaintiff, did place in the possession of said Robert R. Hellwig, a minor, a dangerous article or instrumentality, towit: alcoholic beverage.'

Throughout the appeal of this cause, the argument has been largely confined to two main issues. These are:

(1) Whether the violation of ch. 226, § 31, of the Acts of 1935, as amended, which forbids the sale of alcoholic beverage to a person under 21 years of age, would constitute negligence per se or as a matter of law, and

(2) Whether with or without the above statute there can be a common law cause of action for negligence based upon the sale of intoxicating liquor.

It is urged by the appellee that the violation of a criminal statute is negligence per se only if the statute was enacted for the public safety. The appellee cites Northern Ind. Transit, Inc. v. Burk (1950), 228 Ind. 162, 172, 89 N.E.2d 905, 909, 17 A.L.R.2d 572. In that case the following statement is made:

'The general rule is that a violation of a statute enacted for reasons of safety is negligence per se, or negligence as a matter of law. * * *'

The appellee then argues that the purpose of the statute in question was to protect minors from the exposure to the evils of strong drink and not for the public safety, and that therefore the violation of the statute is not negligence per se or negligence as a matter of law.

It is of course true that if the obvious intention of a statute is to provide for the safety of the public, the violation of that statute is negligence per se. However, it does not follow that simply because a statute cannot be labeled a 'safety statute,' it does not create a duty, the violation of which would be negligence. The function of a prohibitory statute in negligence cases is the establishment of a duty, the violation of which constitutes the negligence. Hence we have the general requirement that the statute must not have been enacted for a wholly different purpose than to prevent the injury complained of, and that the statute must be designed to protect the class of people to whom a plaintiff belongs. See Indiana, etc., Coal Co. v. Neal (1906), 166 Ind. 458, 462, 77 N.E. 850. The test set forth in that case is as follows:

'(When) it is determined that a statute or ordinance was enacted or ordained for a wholly different purpose than to prevent the injury complained of, or that the plaintiff does not belong to the class that the law was designed to protect, * * * it follows that it will not avail to supply the element of a duty owing.' (Cases cited.)

The primary difficulty is in determining what a statute was designed for and whom it was designed to protect. This can be determined only from an over-all examination of the particular statute involved.

Section 1 of the Act involved provides in part as follows:

'This act shall be deemed an exercise of the police powers of the state, for the protection of the economic welfare, health, peace and morals of the people of the state, * * *.' (Burns' § 12--301 (1956 Repl.).)

The same section of the statute forbids the sale of intoxicating liquor to habitual drunkards and persons in houses of ill fame.

It appears that the statute was designed to protect the people of the state. The plaintiff's ward would certainly be of that class.

The statute also seems to be designed to protect against more than the immediate and obvious effects of intoxicating liquor. It refers to the economic welfare, health, peace and morals. When it is taken into consideration that the sale of intoxicating liquor to habitual drunkards is also prohibited by the statute, it seems probable that the legislature intended to protect against the possible harm resulting from the use of intoxicating liquor by those to whom it was not to be sold.

Hence, the statute was sufficiently broad in scope to cover the type of person represented by the plaintiff's ward in this action, and to cover the particular type of injury involved in this action. We are therefore of the opinion that an allegation of the violation of this statute is an allegation of negligence.

Finally, it has been urged that there is no common law liability against the vendor of alcoholic beverages for damages occasioned by the intoxication of his vendee. This issue has been a matter of considerable confusion over the past century. The general rules have been stated as follows:

'At common law it is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and it has been frequently held that, in the absence of statute, there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished. The reason usually given for this rule is that the drinking of the liquor is the proximate...