Elder v. Fisher

• Decision Date: 24 March 1965
• Docket Number: No. 20121,No. 2,20121,2
• Citation: 205 N.E.2d 335
• Parties: John J. ELDER, as Guardian of Ann Kathryn Elder, a minor, Appellant, v. Ray FISHER, d/b/a Fisher's Pharmacy, Appellee
• Court: Indiana Appellate Court

Page 335

205 N.E.2d 335

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

No. 20121.

Appellate Court of Indiana, Division No. 2.

March 24, 1965.

Rehearing Denied May 5, 1965.

Opinion Superseded 217 N.E.2d 847.

James E. Rocap, Jr., Karl J. Stipher, and Daniel E. Johnson, Indianapolis, Rocap, Rocap, Reese & Robb, Baker & Daniels, Indianapolis, of counsel, for appellant.

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

MOTE, Judge.

This is an appeal from an action for personal injuries brought by the appellant, John J. Elder, as guardian of his daughter, Ann Kathryn Elder, a minor, against appellee, Ray Fisher, doing business as Fisher's Pharmacy, a retail drug store, by complaint filed on September 21, 1961, in the Superior Court of Marion County, Indiana, Room Number Two. The complaint, in effect, sought damages because Ann Elder was rendered a paraplegic as a result of an automobile collision with a culvert, allegedly caused by the appellee's sale of intoxicating liquor, in violation of a prohibitive statute, to a seventeen (17) year old boy, Robert R. Hellwig, the driver of the automobile in which Ann Elder later became a passenger and as such sustained injury.

Subsequent to the overruling of a consolidated motion, not here material, the appellee filed a demurrer charging that plaintiff's complaint failed to state facts sufficient to constitute a cause of action. Prior to a ruling on this demurrer appellee, Ray Fisher, doing business as Fisher's Pharmacy, perfected a change of venue to the Hancock Circuit Court. This court sustained the appellee's demurrer and, upon the appellant's refusal to plead over, entered a judgment on demurrer under date of October 17, 1963, against appellant. On October 17, 1963, the appellant filed a praecipe for a transcript of the entire record in this case. This transcript was certified by the Clerk of the Hancock Circuit Court December 10, 1963, and the appeal was perfected on January 14, 1964, by filing in the Appellate Court of Indiana. Appellant, in his Assignment of Errors, alleges that the judgment of the trial court, sustaining the demurrer of the appellee to appellant's complaint, is erroneous and prejudicial to appellant.

Appellant herein advances two arguments in an attempt to demonstrate that under a set of facts such as those alleged in this case, and admitted to be true for the purpose of a demurrer to appellant's complaint, the injured third party has presented facts sufficient to constitute a cause of action. Briefly summarized, these arguments are as follow:

(1) Appellant's complaint states a cause of action under the Indiana common law not only because the sale of intoxicating liquor to a minor, in violation of the prohibitive statute, was negligence per se, but also because under general principles of negligence such a sale to this minor falls outside the 'able bodied man' rule, and creates an unreasonable risk, foressable to the appellee, of the nature which did ensue in this case.

(2) The sale of intoxicating liquor in violation of a statute creates in a person injured as a result of the use of that liquor a statutory cause of action under Section 20, Chapter 13, of the Acts of the Indiana General Assembly of 1875, Special Session.

Under the above section of the Act appellant contends that the purveyor-appellee is strictly liable in civil damages for his actions. This section provided as follows:

'Sec. 20. Every person who shall sell, barter, or give away any intoxicating liquors in violation of any of the provisions of this act, shall be personally liable, and also liable on his bond filed in the Auditor's office, as required by Section 4 of this act, to any person who shall sustain any injury or damage to their person or property, or means of support on account of the use of such intoxication (sic) liquors, so sold as aforesaid, to be enforced by appropriate action in any court of competent jurisdiction.'

However, several liquor control statutes have been enacted since the adoption of Chapter 13 of the Acts of 1875 which must be considered in determining if said statutory provisions had been repealed, either expressly or impliedly, at the time of the sale of intoxicating liquor, under which appellant claims a cause of action.

Section 30, Chapter 119, of the Acts of 1911, provides as follows:

'Sec. 30. All laws and parts of laws in conflict with this act are hereby repealed.'

However, the extent to which the General Assembly intended this liquor control act to affect prior legislation is somewhat open to doubt, as expressed in an annotation by the editors of Burns' Revised Statutes to the 1956 edition of Volume 4, Part 2, Sec. 12-610, which states:

'Some question has arisen as to whether certain portions of Acts 1875 (S.S.), ch. 13, p. 55 are still in effect in so far as they relate to the civil liability of a seller of intoxicating liquor for damages resulting from the use of such liquor. * * *

'* * *

'Acts 1911, ch. 119, p. 244, superseded the Act of 1875 in so far as the licensing and bonding provisions of the earlier law were concerned. The 1911 Act specifically saved certain laws from repeal and repealed all laws and parts of laws 'in conflict.' The 1911 Act however contained nothing on the subject matter of the sections set out above.'

Subsequently, Chapter 4 of the Acts of 1917 was enacted and contained sections applicable to this development. Section 4 of Chapter 4 of the Acts of 1917 provided:

'Sec. 4. That after the 2d day of April, 1918, it shall be unlawful for any person to manufacture, sell, barter, exchange, give away, furnish or otherwise dispose of any intoxicating liquor, or to keep any intoxicating liquor, with intent to sell, barter, exchange, give away, furnish or otherwise dispose of the same, except as in this act provided. * * *' (Emphasis supplied.)

Also Section 32 of this Act under the heading 'Acting Against Person Illegally Furnishing Liquor', stated:

'Sec. 32. Any wife, child, parent, guardian, employer or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication of any person, shall have a right of action against any person, association or corporation that illegally furnished the intoxicating liquor that caused the intoxication of such person for all damages sustained.'

This section is followed by a general repeal found in Section 40, Chapter 4, of the Acts of 1917, which provides:

'Sec. 40. All laws or parts of laws in conflict with this act are hereby repealed.'

It is the opinion of this Court that the General Assembly intended this enactment to encompass the whole subject-matter of the prior liquor control legislation, as it dealt in the same areas of legislation as the prior Act of 1875, including a 'civil damages' section as set out above. In the case of Morris et al. v. City of Indianapolis et al. (1911), 177 Ind. 369, 94 N.E. 705, the Supreme Court of Indiana, in construing the effect of a revised or amendatory act, stated:

'The same rule is affirmed in Thomas v. Town of Butler (1894), 139 Ind. 245, 38 N.E. 808. This court in that case held that when a new statute covers the whole subject-matter of an old one, adds new provisions, and makes changes, and where such new statute, whether it be in the form of an amendment or otherwise, is intended to be a revision and to take the place of the old, it repeals the old law by implication. * * *'

In Section 38, Chapter 48 of the Acts of 1925, the exact context of Section 32, Chapter 4, Acts of 1917 are found, and Section 46 of Chapter 48, Acts of 1925, states:

'Sec. 46. All laws and parts of laws in conflict herewith are hereby repealed.'

In 1933 the Indiana General Assembly enacted Section 1, Chapter 79 of the Acts of 1933, and Section 40, Chapter 80 of the Acts of 1933, which specifically repealed Chapter 48 of the Acts of 1925. It is important to note that Chapter 80, of the Acts of 1933 did not contain a 'civil damages' section, nor has Indiana enacted such a provision since that time. It is, therefore, the opinion of this Court that at the time of the sale of intoxicating liquor and the ensuing incident and injury involved in this litigation, Section 20 of Chapter 13 of the Acts of 1875, Spec.Sess., had been repealed and appellant had no statutory cause of action for 'civil damages' against the appellee.

Both the appellant and the appellee concede the general rule that there is no common law liability against the vendor of alcoholic beverages for damage occasioned by the intoxication of his vendee.

This general rule is found in 30 Am.Jur., Intoxicating Liquor, Par. 520, and states:

'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 cause of the injury, not the furnishing of it. * * *'

However, it is noted by appellant that in the above quoted general rule there are general qualifications which would allow a cause of action against one furnishing liquor in favor of those injured by the intoxication of the person to whom the liquor was so furnished. One such qualification is the sale of intoxicating liquor in violation of a prohibitive statute to persons who are not able-bodied men. At the time of the sale of intoxicating liquor involved in this case there was in effect the following statute which forbids the sale of intoxicating liquors to minors:

'No alcoholic beverages shall be sold, bartered, exchanged, given provided or furnished, to any person under the age of...