Espey By and Through Espey v. Convenience Marketers, Inc.

Decision Date15 February 1991
Citation578 So.2d 1221
PartiesJames A. ESPEY, a minor, who sues By and Through his father and next friend and Guardian, James Q. ESPEY; and James Q. Espey v. CONVENIENCE MARKETERS, INC. 89-859.
CourtAlabama Supreme Court

Joseph G. Pierce and Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellants.

J. Russell Gibson III and Michael S. Burroughs of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.

KENNEDY, Justice.

James A. Espey, suing through his father and guardian, James Q. Espey; and James Q. Espey, individually, filed an action against Convenience Marketers, Inc. ("Convenience"), alleging, among other claims, that they were entitled to damages from Convenience pursuant to Ala.Code 1975, §§ 6-5-70 and -71. James A. Espey was a minor at the time of the events that led to this case and is an incompetent. The father asserts a claim pursuant to § 6-5-70. Both the father and the son assert claims pursuant to § 6-5-71.

The trial court entered a summary judgment for Convenience. The Espeys appeal the summary judgment as to their claims pursuant to §§ 6-5-70 and -71.

On December 11, 1987, between 7:30 and 8:00 p.m., Connie Price, then 16 years old, drove her automobile by the house in Tuscaloosa where James A. Espey ("Jimmy"), then 18 years old, lived with his father, and picked up Jimmy and Thomas Edward Hammock. Throughout the entire evening, Connie was the driver of the automobile.

The three rode around for a while and then decided to buy beer and gasoline. They drove to the defendant's store, a Junior Food Mart in Northport. Jimmy went into the store, paid for the gasoline, and also bought some ice and twelve 12-ounce cans of Budweiser beer. The evidence indicates that Jimmy paid for the gasoline and beer with his father's credit card.

In two affidavits, one offered by the plaintiffs to oppose Convenience's summary judgment motion and one offered by Convenience to support its summary judgment motion, Hammock gives conflicting versions of other events that occurred at the service station. In the affidavit offered by the plaintiffs, Hammock states that Connie pumped gasoline into the automobile while Jimmy was inside the store. In the affidavit offered by Convenience, Hammock states that Connie stayed in the car while Jimmy was in the store and that Jimmy, not Connie, pumped the gasoline; he further states in that affidavit that they parked the automobile in such a manner at the gasoline pumps that "we could not see the clerk and I presume the clerk in the store could not see us."

There is no further factual dispute. According to Hammock, when Jimmy returned to the automobile, he told Connie and Hammock that the store's clerk had asked him for identification to prove his age; that he had told the clerk that he had left his identification at home, but that he was old enough to buy the beer; and that the clerk then sold him the beer.

According to Hammock, the three left the Junior Food Mart and picked up Deanna Patterson, a friend of Connie's. All four then rode to a graveyard in Cottondale and then to the spillway of Lake Tuscaloosa in Northport, and they drank the beer during this time. On their way home, travelling on McFarland Boulevard, Connie was driving her automobile towards the intersection of McFarland Boulevard and Hargrove Road at 75-80 miles per hour. An automobile proceeding on Hargrove Road went through that intersection, and Connie swerved to avoid that vehicle. She lost control of her automobile, and it collided with an electric utility pole.

Connie was killed. The plaintiffs allege that Jimmy was rendered totally disabled physically and was rendered mentally incompetent. Dr. Kenneth Warner, State Medical Examiner with the Alabama Department of Forensic Sciences, performed a post-mortem examination of Connie. He testified that as part of that examination, a blood alcohol analysis was performed, and that it indicated that Connie had a blood alcohol content of .13% at the time of her death. Dr. Warner testified that, based on his experience and training, he believes that Connie was intoxicated at the time of her death.

The original complaint in this action sought recovery from the estate of Connie Price, and the complaint was later amended to include as defendants State Farm Mutual Automobile Insurance Company, West Oil Company, and Convenience. Connie Price's estate and State Farm reached a pro tanto settlement with the plaintiffs, and the trial court dismissed the claims against those defendants. The trial court entered a summary judgment for West Oil Company. This appeal involves only the plaintiffs' claims pursuant to §§ 6-5-70 and -71 against Convenience.

I. Mr. Espey's action pursuant to the Civil Damages Act.

Enacted originally as § 2467 of the 1907 Code of Alabama and referred to as the Civil Damages Act (see Parker v. Miller Brewing Co., 560 So.2d 1030 (Ala.1990)), § 6-5-70 provides:

"Either parent of a minor, guardian or a person standing in loco parentis to the minor having neither father nor mother shall have a right of action against any person who unlawfully sells or furnishes spirituous liquors to such minor and may recover such damages as the jury may assess, provided the person selling or furnishing liquor to the minor had knowledge of or was chargeable with notice or knowledge of such minority. Only one action may be commenced for each offense under this section."

Entering summary judgment for Convenience, the trial court held:

"As to the claim under 6-5-70, there is no question that the defendant sold beer to the plaintiff's minor son. The issue thus becomes whether or not beer is a spirituous liquor under 6-5-70. Under the current state of the case law, there is no question that beer is not a spirituous liquor. (See Tinker v. State, 90 [Ala. 647, 8 So. 855].)"

The parties do not seem to dispute in this appeal that the defendant unlawfully sold or furnished beer to Jimmy, a minor, and that Convenience was chargeable with notice or knowledge of his minority. Accordingly, the dispositive issue presented in relation to the trial court's judgment on Mr. Espey's claim under the Civil Damages Act is whether, for the purposes of the Civil Damages Act, the term "spirituous liquors" includes beer. Mr. Espey, of course, contends that it does.

Citing the concurring opinion in Laymon v. Braddock, 544 So.2d 900, 904 (Ala.1989), Convenience argues that the term "spirituous liquors" in the Civil Damages Act does not include beer. To support that proposition, Convenience cites Tinker v. State, 90 Ala. 647, 8 So. 855 (1891), and § 28-3-1(15). 1 As we discuss presently, close scrutiny of Tinker and § 28-3-1(15) indicates that, except perhaps for dictum in Tinker that actually supports Mr. Espey's position, neither Tinker nor the Code provision is appropriate for determining the meaning of "spirituous liquors" in the Civil Damages Act. Instead, to determine whether the Legislature intended to include beer in the meaning of "spirituous liquors" in the Civil Damages Act, we must look to other case law and consider the historical context of Alabama's Prohibition movement, during which the Civil Damages Act was enacted.

Tinker, decided in the November 1890 term of this Court, involved an appeal from a conviction for selling "liquor" without a license. The statute involved in that case was a general law of local application that addressed "preventing the sale or giving away or otherwise disposing of spirituous or vinous liquor"; the alleged illegal sale involved lager beer, which the Court "judicially knew" to be "malt liquor." The trial court charged the jury that the sale of the lager beer was a violation of the prohibitory statute. The Court reversed the judgment and remanded the cause, because, it held, lager beer, which was "malt liquor," was not addressed by the statute, which addressed instead, the sale of "spirituous and vinous liquor." The Court, basing its holding on Allred v. State, 89 Ala. 112, 8 So. 56 (1890), held that "spirituous liquor means that which, in whole or in part, is composed of alcohol extracted by distillation." 90 Ala. at 648, 8 So. at 855.

Although at first glance that holding might seem dispositive of the issue we address today, closer scrutiny reveals that it is not. For its definition of spirituous liquor, Tinker cited Allred, which was decided the year before Tinker, in the November 1889 term. In Allred, Dr. Allred was indicted and convicted for retailing "spirituous," "vinous," or "malt" liquors, or "intoxicating bitters," without a retailing license. The statutes involved were §§ 629(3), 4036, and 4037 of the 1887 Code of Alabama. Section 629(3) is found in Title 7, Chapter 9, Article I. Chapter 9 specifically addressed "Licenses" and Article I specifically addressed "Businesses and callings for which licenses are required." Section 629(3) provided:

"3. For retailers of spirituous, vinous, or malt liquors in any city, town, village, or any other place, of less than one thousand inhabitants, one hundred and twenty-five dollars; in any city, town, or village of more than one thousand, and less than three thousand inhabitants, one hundred and seventy-five dollars; and in any city or town containing three thousand or more, and less than ten thousand inhabitants, two hundred and fifty dollars; and in any city of more than ten thousand inhabitants, three hundred dollars. But dealers in lager beer exclusively shall be charged one-fourth of the above rates. Any person who pays for and takes out a license as a retailer, shall not be required to pay for, and take out a license as a wholesale dealer in such liquors; and when a retail license is taken out after the first day of January, and before the first day of July, the price of the license shall be the same as for a license for twelve months. Any person who sells or disposes of spirituous, vinous, or malt liquors, or intoxicating...

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    ...who then gave it to Connie, was a disposition of the beer to Connie by Convenience that was 'contrary to the provisions of law.' " 578 So.2d at 1232. The facts of this case are analogous to Espey in that there was no direct sale of alcoholic beverages to the minor driver who became intoxica......
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