Evans v. Joleemo, Inc.

• Citation: 714 S.W.2d 394
• Decision Date: 30 June 1986
• Docket Number: No. 13-85-469-CV,13-85-469-CV
• Parties: Wendel EVANS and Murial Evans, et al., Appellants, v. JOLEEMO, INC., Bobby L. Morris, Individually and d/b/a Bandy's, Appellees.
• Court: Texas Court of Appeals

Page 394

714 S.W.2d 394

Wendel EVANS and Murial Evans, et al., Appellants, v. JOLEEMO, INC., Bobby L. Morris, Individually and d/b/a Bandy's, Appellees.

No. 13-85-469-CV.

Court of Appeals of Texas Corpus Christi.

June 30, 1986.

Rehearing Denied Aug. 29, 1986.

Russell H. McMains, Edwards, McMains & Constant, Corpus Christi, for appellants.

Jeanie Coltrin, Tom Hermansen, Hunt, Hermansen, McKibben & Barger, Corpus Christi, for appellees.

Before the court en banc.

OPINION

SEERDEN, Justice.

Appellants brought wrongful death and survival actions against appellees and Henry Scott Smith. They alleged that appellees negligently served alcoholic beverages to Smith after he became intoxicated in their bar, and that Smith then negligently drove his car, colliding with appellants' son's motorcycle and causing the son's death.

Appellees specially excepted to certain paragraphs in the petition, and the trial court severed the cause of action against appellees and dismissed it. Appellants raise three points of error on appeal, contending that their petition stated a cause of action against the bar owners, and that the court erred in dismissing it. We agree and reverse and remand.

Appellants pled that by negligently serving the intoxicating liquor to Smith, appellees violated a duty they owed to Smith and to the deceased, and that appellees' violation of the duty was a proximate cause of the death and resultant damages.

By their petition, appellants offered to show not only that appellees served alcoholic drinks to Smith when he was intoxicated, but that appellees and their agents knew or should have known that Smith was intoxicated when they served him, and that they knew or should have known that he was going to leave the premises by driving his car. The petition further alleged that appellees were negligent in failing to provide taxi or limousine service for its patrons who became intoxicated and in failing to advise police that the intoxicated person was leaving the premises when they knew, or in the exercise of reasonable care should have known, he would attempt to drive on the public streets while intoxicated. For purposes of this appeal, these allegations are taken as proven. Fazekas v. University of Houston, 565 S.W.2d 299 (Tex.Civ.App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.).

Appellants do not seek to establish liability simply because Smith obtained the intoxicant from appellees. Rather, they have alleged a violation of a duty, forseeability, proximate cause, and damages.

A dramshop is "a drinking establishment where liquors are sold to be drunk on the premises; a bar or saloon." BLACK'S LAW DICTIONARY (Fifth Edition 1979). The fact that Texas has not enacted so-called dramshop legislation does not mean that persons operating such establishments are immune from well-accepted and long-standing principles of common law. Such legislation would clarify and codify the law on liability of operators of dramshops; however, lack of such legislation simply requires the courts to deal with the subject in their traditional fashion through case-by-case decision and analysis.

The common-law general rule is that it is not a tort to sell liquor to an ordinary, able-bodied person. The stated rule that the drinking of the liquor, not the furnishing of it, is the vice, presupposes sale of the alcohol to a normal, able-bodied person. The reasoning does not apply when the person selling the intoxicant knows the purchaser is intoxicated and therefore impaired in his ability to conform to ordinary rational conduct.

The ancient case of McCue v. Klein, 60 Tex. 168 (1883) illustrates this principle. In that case, the defendants induced a habitual drunkard to drink three pints of whiskey, thereby causing his death. Stating the general principle that a man can recover no damages for an injury, received at the hands of another, to which he has consented, the court went on to reason that when the injured party was divested of the power to refuse by total or partial want of mental facilities, liability could not be excused on the ground of consent. The maxim of "volenti non fit injuria" presupposes that the party is capable of giving assent to his own injury. The court concludes at 169:

And so if one whose mental faculties are suspended by intoxication so induced to swallow spirituous liquors to such excess as to endanger his life, the persons taking advantage of his condition of helplessness and mental darkness and imposing the draught upon him must answer in damages for the injury that ensues.

While Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex.1983), involves the employer-employee relationship, the rationale at 311 applies here. The court states that when an employer exercises control over an incapacitated employee, it has the duty to take reasonable and prudent actions to prevent the causing of unreasonable risk or harm to others. This would apply even more forcefully in this case, where appellees are alleged to have encouraged and participated in the incapacitating of Smith in the first place.

We hold under general common law principles that a tavern owner who encourages one to consume too much alcohol, continues to serve him alcohol after he knows or should know he was intoxicated, and who knows or should know that he will operate a motor vehicle on the public streets, owes a duty to third persons to take such precautions as are reasonable and prudent to prevent the intoxicated person from driving, and that it is foreseeable that a breach of this duty could cause injury to third persons. See Poole v. El Chico Corp., 713 S.W.2d 955 (Tex.App.--Houston [14th Dist.], 1986).

Appellants further contend that TEX.ALCO.BEV.CODE ANN. § 101.63(a) (Vernon 1978), which provides that it is a criminal offense to knowingly sell alcoholic beverages to a habitual drunkard or an intoxicated or insane person, establishes such to be negligence per se. Appellees argue that this section is only for the protection of habitual drunkards, intoxicated or insane persons, and does not establish a duty of care or standard of conduct. The same contention was made and rejected in Poole. In that case, the court observed that the Alcoholic Beverage Code provides: "This code is an exercise of the police power of the state for the protection of the welfare, health, peace, temperance, and safety of the people of the state." Common sense and human experience compels the knowledge that intoxicated persons are a serious threat to other persons and others' property. While it is not necessary to decide if the statute establishes negligence per se, we believe that the legislature, in adopting TEX.ALCO.BEV.CODE ANN. § 101.63(a), intended to protect the public as well as intoxicated persons. The legislature indicated its concern for the public in its recent re-enactment of TEX.PENAL CODE ANN. § 42.08(a) (Vernon Supp.1986): "An individual commits an offense if the individual appears in a public place under the influence of alcohol or any other substance, to the degree that the individual may endanger himself or another." (Emphasis added.)

We sustain appellants' points of error, reverse the judgment of the trial court, and remand the case for a trial on the merits.

UTTER, BENAVIDES and DORSEY, JJ., join.

NYE, C.J., and KENNEDY, J., dissent.

NYE, Chief Justice, dissenting.

I respectfully dissent. The majority has implicitly and with a totally incomplete analysis overturned one hundred and fifty years of common law. This attempt by the majority to usurp the power of the legislature is improper and incorrect. The function of the intermediate court of appeals is primarily a stare decisis court. Inventiveness belongs to the legislature and, in some cases, the Supreme Court and Court of Criminal Appeals, but not to the intermediate appellate courts.

Initially, the majority has chosen to pluck from thin air a cause of action by third parties who are injured by the acts of intoxicated patrons against bar owners. The majority, while recognizing that Texas has no statutory dramshop liability, without explanation places a common law duty on tavern owners under supposedly "traditional" rules of common law negligence. This is not the case here.

Ordinarily, a plaintiff may maintain an action in negligence if he proves:

1. A duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risk.

2. A failure on [defendant's] part to conform to the standard required ...

3. A reasonable close causal connection between the conduct and the resulting injury.... [foreseeability, and]

4. Actual loss or damage.... [Emphasis added.]

W. Prosser, Handbook of the Law of Torts § 30 at 143 (4th Ed.1971).

As set forth in the majority's opinion, "negligence" is an abstract concept which must be defined for a jury as consisting of certain elements. As previously set forth herein, foremost among those elements there must be a "duty recognized by law." Without the existence of the "duty recognized by law" the remaining elements are irrelevant and cannot be by themselves the basis of a cause of action in negligence.

The majority, while recognizing the common law general rule that it was not a tort to sell liquor to an ordinary, able-bodied person, does not state the complete common law rule. At common law, a tavern owner is not liable for injuries sustained off-premises by third persons as a result of the acts of an intoxicated patron, even when the tavern owner's negligence in serving that patron was a contributing cause of the accident. See Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 627, 486 P.2d 151, 155 (Cal.1971), for a compilation of case citations and an explanation of the rationale supporting the common law rule. See also Annot., 98 A.L.R.3d 123 (1984); Annot., 97 A.L.R.3rd 528 (1984); 48A C.J.S. Intoxicating Liquor § 428 (1981); 45 AM.JUR.2nd, Intoxicating...