Daley v. Ward

• Citation: 303 S.C. 81,399 S.E.2d 13
• Decision Date: 20 August 1990
• Docket Number: No. 1548,1548
• Court: South Carolina Court of Appeals
• Parties: Mary C. DALEY, Appellant, v. John William WARD, III, The Windjammer, Inc., and Malcolm M. Burgis, Defendants, of whom The Windjammer, Inc. and Malcolm M. Burgis are Respondents. . Heard

Page 13

399 S.E.2d 13

303 S.C. 81

Mary C. DALEY, Appellant, v. John William WARD, III, The Windjammer, Inc., and Malcolm M.

Burgis, Defendants,

of whom The Windjammer, Inc. and Malcolm M. Burgis are Respondents.

No. 1548.

Court of Appeals of South Carolina.

Heard Aug. 20, 1990.

Decided Sept. 17, 1990.

Kerry W. Koon, Charleston, for appellant.

Stephen E. Darling and John H. Tiller, Charleston, for respondents.

SHAW, Judge:

Appellant, Mary C. Daley, instituted an action against respondents, The Windjammer, Inc. and Malcolm M. Burgis, president of The Windjammer, alleging the serving of alcohol to an intoxicated person with whom she was involved in an automobile accident. Following a jury verdict in favor of the respondents, Daley appeals. We reverse and remand.

The record reveals the following facts. On June 22, 1986 at approximately 10:55 p.m., John William Ward, III was travelling behind Daley when he struck her car from the rear. Ward had left the Windjammer approximately fifteen to twenty minutes earlier after spending four or five hours there drinking nine, twelve ounce cans of beer. Testimony from both Daley and the investigating officer indicated they believed Ward was intoxicated immediately after the accident. Ward stated that, although he did not initially believe he was intoxicated while at the Windjammer, after viewing a videotape of his behavior following the accident, he was of the opinion that he was intoxicated. An expert witness who also viewed the videotape of Ward also stated he was of the opinion that Ward was intoxicated. Ward testified he did not recall drinking beer at any place other than the Windjammer that evening.

The two bartenders on duty on the day in question both indicated they did not remember Ward. They confirmed Burgis' testimony that it was their policy not to serve anyone who appeared intoxicated. They stated that, if a customer appeared in the same condition as Ward did on the videotape, they would have refused to serve him. Both further stated they did not knowingly serve anyone that was intoxicated on June 22, 1986.

In reply to the testimony relating to the policy not to serve intoxicated persons, Daley attempted to relate a specific incident where she observed service of alcohol to an intoxicated person at the Windjammer. The trial judge refused to allow the testimony finding it was not in the nature of rebuttal. Daley was then allowed to proffer this evidence.

The first issue we address on appeal is raised by the respondents as an additional sustaining ground. That issue is whether § 61-9-410 of the South Carolina Code of Laws (1976) (Rev.1990) supplies a private cause of action for civil liability to a third party who is injured as a result of a violation of that statute. That statute provides in pertinent part as follows:

No holder of a permit authorizing the sale of beer or wine or any servant, agent, or employee of the permitee shall knowingly do any of the following acts upon the licensed premises covered by the holder's permit:

. . . . .

(2) Sell beer or wine to any person while the person is in an intoxicated condition....

The question of whether this code section provides a basis for civil liability when violated was addressed in Christiansen v. Campbell, 285 S.C. 164, 328 S.E.2d 351 (Ct.App.1985) cert. denied, S.C.Sup.Ct. order dated June 27, 1985. This court concluded that a violation of § 61-9-410(2) gave rise to a civil cause of action in favor of an intoxicated patron who was injured as a result thereof. We noted this statute was clearly designed to promote public safety and that the purpose in prohibiting a vendor from selling beer to one who is already intoxicated is to prevent the person from becoming even more intoxicated so that he is not a greater risk when he leaves the bar. Id. at 354. We find no reason for which the class of persons protected by the statute should not include third parties injured by the actions of an intoxicated person served in violation of the statute. Indeed our decision in Jamison v. The Pantry, Inc., 392 S.E.2d 474 (S.C.Ct.App.1990) indicated § 61-9-410 gives rise to a civil cause of action by a third party injured by a violation of the statute. There we noted that the purpose of the statute is to protect not only the individual served in violation of the statute, but also the public at large, from the possible adverse consequences. We thus conclude the trial judge properly denied the respondents' motion for a directed verdict on this basis.

As a second additional sustaining ground, the respondents contend the evidence was insufficient to submit the case to the jury. We disagree. There was more than ample evidence that Ward was intoxicated at the time of the accident and the jury could have easily concluded he was just as intoxicated at the time he was served his last beer at the Windjammer. We find no error on the part of the trial judge in submitting the case to the jury based on the evidence before him.

Daley asserts error on the part of the trial judge in failing to instruct the jury as she requested in relation to proof of a violation of the statute in question and in improperly instructing the jury in response to a question by the jury concerning the standard of proof required by the statute. The record reveals the trial judge's initial charge to the jury includes a charge of § 61-9-410(2) verbatim. Daley simply objected to the trial judge's failure to charge the jury as she requested. The charge was based on a North Carolina case and read as follows:

To prove a violation of the statute I...