Buchanan v. Merger Enterprises, Inc.

• Decision Date: 24 August 1984
• Citation: 463 So.2d 121
• Parties: Buehl B. BUCHANAN v. MERGER ENTERPRISES, INC. 83-370.
• Court: Alabama Supreme Court

Page 121

463 So.2d 121

Buehl B. BUCHANAN v. MERGER ENTERPRISES, INC.

83-370.

Supreme Court of Alabama.

Aug. 24, 1984.

Rehearing Denied Jan. 11, 1985.

R. Bruce Hall of Conaway, Hall, Carter & Bledsoe, Dothan, for appellant.

Jack R. Thompson, Jr. of Kracke, Woodward & Thompson and Thomas E. Ellis of Kracke, Thompson & Ellis, Birmingham, for appellee.

FAULKNER, Justice.

The plaintiff, Buehl B. Buchanan, appeals from a summary judgment in favor of Merger Enterprises, Inc., doing business as the Checkers Lounge. The issue in this case is whether the personal representative of an individual killed by a drunken driver should be allowed to bring an action against a lounge which continued to serve alcohol to a patron after he had become visibly intoxicated, when the lounge's employees knew or should have known that the patron would later attempt to drive an automobile.

The plaintiff alleges that at or about 5:30 in the morning of July 29, 1981, David Slaughter entered the Checkers Lounge in Dothan after an all-night drive from Florida. He commenced drinking and continued imbibing until around noon, when he left with a waitress. Thirty minutes later he returned and remained at the lounge until around 5:00 P.M. Although Slaughter became visibly intoxicated while in the lounge, the lounge's employees continued to serve him alcoholic beverages up until the time he left. About fifteen minutes after leaving the lounge, the automobile which Slaughter was driving left the road and careened through the yard of the plaintiff's mother, killing her as she worked in her garden.

Alabama's dram shop statute creates a civil action against a purveyor of alcoholic beverages in favor of any person, or the personal representative of any person, injured or killed by an intoxicated person when the beverages causing the intoxication were dispensed "contrary to the provisions of law." Section 6-5-71, Code of Alabama 1975. Prior to 1980, Title 28, Chapter 3, of the Code, §§ 28-3-1 et seq., governed the sale of alcoholic beverages in "wet" counties. That chapter contained an article, Article 9, enumerating miscellaneous offenses connected with the sale and distribution of alcohol. Sales in violation of that article were considered to be sales contrary to law within the meaning of the dram shop statute. Section 28-3-260(2) provided that it was unlawful for a liquor licensee "to sell, furnish or give any beverages to any person visibly intoxicated or to any insane person or to any minor or to habitual drunkards or to persons of known intemperate habits." Thus, where a tavern served liquor to a visibly intoxicated patron in contravention of § 28-3-260, a person injured by the patron had a cause of action against the tavern under the dram shop statute.

In 1980 the legislature enacted a new Alcoholic Beverage Licensing Code, Act No. 80-529. The new licensing code replaced Article 9 of old Title 28. The new code did not, however, have any provisions similar to § 28-3-260 enumerating offenses associated with the sale of alcohol. The defendant contends that the framers of the new licensing code sought to bestow greater authority on the Alcoholic Beverage Control Board to promulgate rules governing the sale of alcohol. Section 28-3-49, Code of Alabama 1975, gives the Board the power to promulgate rules and regulations having the full force and effect of law regarding the sale of alcoholic beverages. The A.B.C. Board did promulgate regulations prohibiting the sale of alcohol to persons "acting in a manner as to appear to be intoxicated." Regulation 20-X-6-.02. That regulation was not promulgated until September of 1982, which, of course, was after Mrs. Buchanan's death.

The defendant argues that because Mrs. Buchanan's death occurred subsequent to the repeal of § 28-3-260 and prior to the promulgation of § 20-X-6-.02, there was no sale contrary to law and, hence, that no cause of action arose under the dram shop statute. The defendant argues that the legislature is the proper body of government to determine the public policy of this state regarding the scope of liquor vendor liability laws and that it has limited the scope of those liquor liability laws in such a way that there is no cause of action against the defendant under these facts.

We agree with the defendant to the extent that it appears that on the date in question there was no statute in effect making it illegal to sell alcohol to visibly intoxicated persons. We disagree, however, with the defendant's characterization of this plaintiff as a single "unfortunate" individual seeking to carve out a special exception to the usual rules of liquor vendor liability in Alabama. From 1909, when the dram shop statute was first passed, until the present time, with the sole exception of the short hiatus during which the events complained of in this case took place, Alabama has recognized a cause of action under the dram shop statute for injury or death caused by an intoxicated individual where the intoxicated person was sold alcohol in the manner alleged in this case. It is not the plaintiff who seeks to carve out a special exception. It is the defendant, who has been accused of culpable behavior, who seeks to escape liability solely because of the fortuitous timing of the events.

Moreover, it appears to us that the emasculation of the dram shop statute by the passage of the new alcohol licensing act was the result of legislative oversight, not legislative wisdom. The legislature may have intended for the A.B.C. Board to promulgate regulations governing the sale of alcohol. It does not follow from that premise, however, that it intended to legalize the sale of alcohol to visibly intoxicated persons, to minors, and to insane persons. To the contrary, it appears to us that the legislature was very concerned with the problem of drunken driving. In the same term during which the new alcohol licensing act was passed, the legislature passed a new drunk driving law, Act. No. 80-434, granting trial courts new powers to suspend driving licenses of those convicted of drunk driving upon their first conviction and providing for increased penalties and a mandatory suspension of driving privileges for second and subsequent convictions. Compare § 32-5A-191 to § 32-5-170, Code of Alabama 1975. The stated purpose of the new drunk driving laws was to "do a better job of helping to identify the problem drinking driver and keep him off the highways." Commentary to § 32-5A-191. Unless the legislature was afflicted with a collective split personality, it is difficult to believe that it intended to give taverns carte blanche authority to continue serving alcohol to visibly intoxicated patrons, given its concern for drunken driving. If it had intended to do away with the dram shop statute the legislature would have repealed the statute itself, not just its teeth.

The complexity and interrelationship of statutory laws are such that the repeal of one statute can have unexpected consequences, as it did here with the dram shop statute. A similar problem was created with the passage of the new drunk driving statute in 1980. Driving under the influence of alcohol is a misdemeanor under Alabama law. See § 13A-1-2(3). The Alabama statute authorizing warrantless arrests allows police officers to make warrantless arrests for the violation of a misdemeanor when the offense is committed within the officer's presence. Section 15-10-3(1), Code of Alabama. When an officer has observed a drunken driver violating traffic laws the officer can arrest the driver, since the offense was committed in the officer's presence. If, however, the drunk driver was involved in a traffic accident and the officer arrived at the scene of the accident after it had occurred, the offense would not have been committed in the officer's presence and, therefore, the officer would not be authorized under § 15-10-3 to make an arrest. Obtaining a warrant is impractical, since the length of time it takes to do so would usually be such that, by the time the arrest is made the blood alcohol level of the suspect would have diminished and the results of the post-arrest tests administered to determine the driver's blood alcohol content would not reflect the driver's state of intoxication at the time of the accident. Therefore, the legislature passed an act empowering police officers to make warrantless arrests at the scene of an accident for the violation of § 32-5-170, the old drunk driving law. Acts 1971, No. 1942, codified at § 32-5-171. When the legislature passed the new drunk driving law in 1980 it did not amend § 32-5-171 to reflect passage of the new act. Since § 32-5-170 had been repealed, the new drunk driving law in effect rendered useless the statute empowering police to arrest drunk drivers who had been involved in an accident. An argument could be made to the effect that, by passage of the new drunk driving law, the legislature "intended" to strip police of the right to arrest drunk drivers who were involved in traffic accidents. As a practical matter, such an argument simply is not plausible. Just as the emasculation of the dram shop statute was inadvertent, so was the emasculation of the statute allowing police to arrest drunk drivers who have been involved in accidents. The legislature subsequently amended § 32-5-171 to correct the mistake, see Acts 1983, 2d Ex.Sess., No. 83-201, just as the A.B.C. Board resurrected the dram shop statute by passage of a new regulation prohibiting sales of liquor to visibly intoxicated persons.

Thus, we are faced with an anomalous situation. It is the legislatively declared policy of this state to discourage drunken driving. Even the defendant concedes in its brief that there is a "universal concern" for the problem. Yet, during the same term that the legislature passed new, more stringent, drunk driving laws, it inadvertently removed the statutory prohibition against selling further intoxicants to visibly...