Alpha Zeta Chapter of Pi Kappa Alpha Fraternity by Damron v. Sullivan

• Decision Date: 23 November 1987
• Docket Number: No. 86-311,86-311
• Parties: ALPHA ZETA CHAPTER OF PI KAPPA ALPHA FRATERNITY, an Unincorporated Association, by James DAMRON, its President, Appellant, v. Sharon K. SULLIVAN and Ken Prince Individually and as Co-Administrators of the Estate of Todd Alan Prince, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 127

740 S.W.2d 127

293 Ark. 576

ALPHA ZETA CHAPTER OF PI KAPPA ALPHA FRATERNITY, an Unincorporated Association, by James DAMRON, its President, Appellant, v. Sharon K. SULLIVAN and Ken Prince Individually and as Co-Administrators of the Estate of Todd Alan Prince, Deceased, Appellee.

No. 86-311.

Supreme Court of Arkansas.

Nov. 23, 1987.

Pope, Shamburger, Buffalo & Ross, Little Rock, for appellant.

Robert A. Parker, Benton, Ted Boswell, Bryant, for appellee.

HAYS, Justice.

Appellees are the parents of Todd Alan Prince, deceased. They brought this action individually and as co-administrators for the wrongful death of their son. Appellant is the Alpha Zeta Chapter of Pi Kappa Alpha Fraternity, an unincorporated association, by its president, James Damron.

Appellant sponsored a hayride on the evening of October 3, 1984 in appreciation of the "Little Sisters" of the fraternity, a group of women students helpful to individual members with their studies and to the fraternity with its projects. Arrangements were made between Trent Trumbo, a member of the fraternity, and John Reed of John Reed Company for Reed to furnish two vehicles suitable for hayrides. Reed furnished the hay and two drivers as well. Reed's regular work was renting construction equipment with twenty-four hour mechanic and wrecker service. Reed handled an average of five hayrides a year in conjunction with his regular business. After determining the number of persons, the length of time involved, and the amount of hay needed, Reed arrived at a price for the hayride.

Todd Prince was eighteen years old when he enrolled as a freshman at the University of Arkansas in the fall of 1984. He was not a member of PiKA but was invited to the hayride along with several other rushees to see whether he would be interested in joining if the members were similarly inclined. It is clear that intoxicating beverages were being used rather freely as the students, perhaps 100 in number, awaited the arrival of the trucks, due around 8:00 o'clock. It is not clear whether these beverages were supplied by the fraternity or by individuals. There was testimony that someone at the party purchased a half pint of bourbon for Todd Prince with money Todd supplied.

The trucks arrived, took on their passengers and began a circuitous ten mile trip to the Gateway Farm where the party was to be held. Two kegs of beer were furnished by the fraternity at the farm. The return to the campus began about 11:30 p.m. by way of Mount Comfort Road. Along a straight stretch of that road the driver of one of the trucks, Melton Newman, responded to calls from several of the passengers to stop so that they might relieve themselves. There was no shoulder at that point and Newman stopped on the pavement while passengers dispersed, some in the direction of a clump of trees on the far side of the road.

As the party was thus engaged, Norman Hutton approached in his automobile traveling in the opposite direction. As Hutton passed the trailer, at a speed variously estimated at 40 m.p.h. to 70 m.p.h., his vehicle struck Todd Prince as Prince was walking across the roadway toward the trees. Hutton did not stop, though he returned a short time later, explaining that he thought he had struck a bundle of hay thrown from the trailer as he passed. The investigating officer testified that Hutton had a strong odor of alcohol about him and spoke with slurred speech. Hutton admitted to having just drunk one pitcher of beer and part of a second.

As a result of the impact Todd Prince was critically injured. He was taken first to the Washington Regional Hospital and then by Med-Flight to the Baptist Medical Center in Little Rock where, on October 9, he expired.

In June 1985 Todd Prince's parents filed this wrongful death action on behalf of themselves and Todd's two sisters against the national Pi Kappa Alpha Fraternity, the local Pi Kappa Alpha Chapter, The Pi Kappa Alpha Monticello Corporation, John Reed, Melton Newman and Norman Hutton. The complaint sought compensatory damages of $535,000 and punitive damages of $1,500,000. The national fraternity and Pi Kappa Alpha Monticello Corporation were dismissed from the action by a directed verdict and the jury returned a verdict against the remaining defendants, apportioning 95% of the fault to the fraternity, 2% to John Reed, 1% to Melton Newman, 1% to Norman Hutton and 1% to Todd Prince. The verdict awarded compensatory damages of $30,000 to the estate, $100,000 to each of Todd's parents and $25,000 to each sister. Punitive damages of $250,000 were assessed against the fraternity, $2,500 against Norman Hutton and a like amount against Melton Newman. ¹

Pi Kappa Alpha has appealed from the judgment entered on the verdict alleging seven errors by the trial court: (1) The trial court erred in submitting the case to the jury on a "dramshop" instruction which is not a basis for liability; (2) The trial court erred in giving instruction number 9 which allowed the jury to find Melton Newman to be the agent of the fraternity; (3) The trial court erred in holding that John Reed Company was a common carrier, thereby involving the "highest degree of care" duty; (4) There was no substantial evidence to support a finding that Melton Newman was subject to the control of the fraternity, (5) There was no substantial evidence to support an award of punitive damages against Melton Newman or Pi Kappa Alpha; (6) The verdicts were excessive as a matter of law; and (7) The trial court erred in failing to direct a verdict against Jodi Prince (Todd's sister) on the issue of damages.

I

The trial court erred in submitting the case to the jury on

a "Dramshop" instruction, which is not a basis for

liability.

Over the objection of the defendants the trial court gave plaintiff's requested instruction No. 14:

Evidence that Alpha Zeta Chapter of Pi Kappa Alpha Fraternity furnished intoxicating liquor to Todd Alan Prince, a minor, has been presented to you. You may not find Alpha Zeta Chapter guilty of negligence for that reason. However you may consider that evidence in determining whether Alpha Zeta Chapter was negligent under the circumstances, as I have defined the term "negligence" in previous instructions.

We think it was error to instruct the jury in this fashion. The instruction is plainly confusing. It tells the jury it may consider the fact that the fraternity furnished liquor to Todd Prince in determining whether the fraternity was negligent, but that the jury may not find the fraternity negligent for that reason. We believe it is expecting too much of the jury to require it to intelligently decipher that contradiction. It is settled law that it is prejudicial error for the court to give instructions which are directly conflicting and calculated to mislead the jury. Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67, 147 S.W. 86 (1912); McCurry v. Hawkins, 83 Ark. 202, 103 S.W. 600 (1907); Capitol Old Line Ins. Co. v. Gorondy, Adm'x., 1 Ark.App. 14, 612 S.W.2d 128 (1981).

Beyond that, we believe the instruction runs counter to that group of cases wherein we have held that one who furnishes alcohol to a minor or to someone who is inebriated is not liable by so doing. We have embraced that principle even where the violation of a statute accompanied the furnishing of alcohol. In Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), a tavern operator furnished alcoholic drinks to its co-defendant, Ruby Turner, in violation of a statute requiring liquor to be sold in packaged containers for consumption off the premises. Ms. Turner was permitted to become visibly intoxicated and to leave the premises in her car. She promptly ran into a parked vehicle and injured the occupant. The unanimous opinion in Carr v. Turner reviewed three earlier cases by this court. In one it was held that a saloonkeeper was not negligent for furnishing liquor to one who became intoxicated and injured another; in the other two cases we held that providing liquor to one person was not the proximate cause of an injury to a third person.

Reviewing the majority rule on this issue in light of two pertinent Arkansas statutes, one prohibiting a barkeeper from supplying someone who is intoxicated, and the other prohibiting any person from selling or giving liquor to a minor, the court in Carr stated:

There is significant distinction between these cases and the one now before us. In all the decisions cited the liability to the injured person fell solely upon one engaged in the sale of alcoholic beverages. Our statute is not so narrow. It applies to any person who sells or gives away intoxicating liquor to a minor or to an inebriate. By its terms it is equally applicable to a liquor dealer and to a host who serves cocktails in his own home. Perhaps the legislature did not mean for the law to be so sweeping in its scope, but we must give effect to the statute as we find it.

The Carr opinion makes it clear by express language that if a Dramshop Act is to be adopted in Arkansas it should be by legislative action rather than by judicial interpretation. No legislation has been forthcoming in the twenty years since Carr v. Turner was decided.

More recently, in Milligan v. County Line Liquor, Inc., 289 Ark. 129, 709 S.W.2d 409 (1986), we affirmed the granting of summary judgment in favor of the appellee County Line Liquor Store, charged with negligence in selling beer to a minor in violation of Ark.Stat.Ann. § 48-901 (Repl. 1977). It was again emphasized that if a Dramshop Act were to become the law in Arkansas it must come by legislative action.

Two recent cases have rejected appeals to deviate from the Carr v. Turner and Milligan v. County Line Liquor Store decisions. In Yancey v. The Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987) the appellee twice sold alcohol illegally to a minor, the second time after he was intoxicated. The minor then had an accident and two teenaged...