Farmers Mut. Auto. Ins. Co. v. Gast

• Decision Date: 02 October 1962
• Parties: FARMERS MUTUAL AUTOMOBILE INS. CO., a Wis. insurance corporation, Appellant, v. Carl GAST, Respondent.
• Court: Wisconsin Supreme Court

Page 347

117 N.W.2d 347

17 Wis.2d 344

FARMERS MUTUAL AUTOMOBILE INS. CO., a Wis. insurance

corporation, Appellant, v. Carl GAST, Respondent.

Supreme Court of Wisconsin.

Oct. 2, 1962.

Benton, Bosser, Fulton, Menn & Nehs, Appleton, Peter S. Nelson, Appleton, of counsel, for appellant.

Burns & Lubinski, Seymour, and Alvin L. Kelsey, Seymour, of counsel, for respondent.

Paul E. Jorgensen, Racine, Ray T. McCann, Milwaukee, of counsel, Irving D. Gaines, Phillip J. Fox, Robert F. Kirst, Milwaukee, of counsel, E. J. Stats, Milwaukee, amici curiae.

CURRIE, Justice.

Defendant's brief states the issue on this appeal to be: Is a tavern-keeper who, in violation of law, sells fermented malt beverages to a seventeen-year-old minor liable to third persons injured by reason of such minor's resulting intoxication? Nevertheless, we deem the allegations of the complaint sufficient to raise the further issue of whether defendant is liable on principles of common-law negligence independent of his violation of a criminal statute. Therefore, after resolving the first issue we shall consider the second.

Liability Grounded Upon Violation of a Criminal Statute

The criminal statute which defendant violated in selling fermented malt beverages to seventeen-year-old Donald Kahler is sec. 66.054(9)(b), Stats.1957. This statute provides:

'No fermented malt beverages shall be sold, dispensed, given away or furnished to any person under the age of 18 years unless accompanied by parent or guardian.'

Plaintiff's theory of its cause of action is that defendant's violation of this statute constituted negligence per se and rendered him liable to anyone sustaining damage as as a result of this violation.

The general rule adopted by this court is that violation of a criminal statute constitutes negligence per se. McAleavy v. Lowe (1951), 259 Wis. 463, 475-476, 49 N.W.2d 487. In that case, however, we noted that there are exceptions to this rule. One such exception might arise if a driver swerved to the wrong side of a highway to avoid a collision with an object in his lane of travel. In Reque v. Milwaukee & S. T. Corp. (1959), 7 Wis.2d 111, 114b, 95 N.W.2d 752, 97 N.W.2d 182, we recognized still another exception to the rule of negligence per se where a statute had been violated. In that case, the statute violated had been enacted to protect against hazards other than those which gave rise to the harm. We cited therein the Restatement, 2 Torts, p. 48, sec. 288 (Tentative Draft No. 4) which sets forth, among other exceptions, the closely analogous case in which a statute has been enacted to protect an interest other than the one invaded by its violation.

We are satisfied that sec. 66.054(9)(b), Stats., was enacted to protect the safety of persons who might be injured as a result of the intoxication of minors as well as the health and morals of minors under eighteen years of age. ¹ Since we have concluded that one of the objectives of this statute is public safety, the general rule, rather than any of its exceptions, would be applicable and the violator of this statute would ordinarily be negligent per se. In such a situation, where the legislature enacts a criminal statute and is silent about the civil liability, if any, which attaches to its violation, the courts are free to determine under common-law principles whether the violator is civilly liable for damages to one injured by the violation. It would be extremely difficult, after imposing liability, under the negligence per se doctrine (in McAleavy v. Lowe, supra), upon the violator of a statute prohibiting the sale of adulterated pig food, to relieve from liability one who sold intoxicating beverages to a minor in violation of a statute making it a criminal offense to do so.

Nevertheless, where the legislature, in addition to enacting a criminal statute, legislates further and makes the violator of the statute civilly liable in certain situations, the question arises, Has the legislature preempted the field of civil liability? This brings us to defendant's contention that the legislature has preempted the field of civil liability in the case of a tavern-keeper, such as defendant, who has violated sec. 66.054(9)(b), Stats. Defendant points out (1) that over the years the legislature had provided for civil liability of vendors of intoxicating liquor and (2) that the exclusive civil remedy for breach of any of the criminal laws regulating sales of liquor is sec. 176.35, Stats., ² aopted in 1934. We interpret the action of the legislature in enacting sec. 176.35, Stats., which requires notice to be given not to sell or give an intoxicating liquor to a minor in violation of statute as a condition to imposing civil liability, as a clear expression of legislative intent that, absent giving of notice, no civil liability is to result from the violation. This is true even though the remedy provided is not coextensive with the wrong declared by criminal statutes such as sec. 66.054(9)(b), Stats. Courts in other jurisdictions have found legislative preemption of the field of civil liability for sales of intoxicating beverages in violation of criminal statutes even though the remedy provided is not coextensive with the wrong declared. Thus plaintiffs' causes of action grounded on such violations were held, in the following cases, to be without the provisions of the civil liability statutes involved: Noonan v. Galick (1955), 19 Conn.Supp. 308, 112 A.2d 892; Randall v. Village of Excelsior (1960), 258 Minn. 81, 103 N.W.2d 131; Strand v. Village of Watson (1955), 245 Minn. 414, 72 N.W.2d 609; Cavin v. Smith (1949), 228 Minn. 322, 37 N.W.2d 368; Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708, 6 A.L.R.2d 790; and Hyba v. C. A. Horneman, Inc. (1939), 302 Ill.App. 143, 23 N.E.2d 564. The federal court, however, in Waynick v. Chicago's Last Department Store (7th Cir.1959), 269 F.2d 322, 77 A.L.R.2d 1260, certiorari denied 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554, found no preemption under the Illinois dram shop statute because the accident, in which plaintiffs were injured, occurred in Michigan and not Illinois where the unlawful sales of intoxicating liquor took place. See, also, Schelin v. Goldberg (1958), 188 Pa.Super. 341, 146 A.2d 648, leave to appeal denied by the Pennsylvania supreme court February 27, 1959, where the accident occurred after repeal of Pennsylvania's dram shop statute.

It is conceded that plaintiff cannot ground its cause of action upon the civil damage act, sec. 176.35, Stats., because (1) the beer sold Donald was not an 'intoxicating liquor' as defined in SEC. 176.01(2), AND (2)³ defendant was not given notice not to sell or give intoxicating liquors to Donald. We have deemed it advisable to set forth, as an appendix to this opinion, a history of the legislation imposing civil liability from territorial days down to the present time. Included therein are some of this Court's interpretations of the various statutes. This legislative history further supports the view that the legislature has preempted the field of civil liability resulting from illegal sales of intoxicating beverages including beer.

The following question may arise: Why does the court find legislative preemption in the instant case when it did not so find in Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618. In that case, wherein the doctrine of immunity of municipal corporations for tort liability was abolished, the legislature had subjected municipal corporations to liability for negligence in the construction, repair and maintenance of public buildings, and in the operation of municipally-owned-or-operated motor vehicles. Secs. 101.06 and 345.05, Stats. Limited liability also had been imposed upon municipalities for damages due to defective streets or sidewalks. Sec. 81.15, Stats. Nevertheless, this court in Holytz found no legislative preemption preventing it from abolishing the doctrine of municipality immunity for tort liability. ⁴ The distinction between the situation presented in Holytz and that of the instant case is as follows: In the former we were dealing with a court-made rule whereas here we are concerned with the extent to which a legislative prohibition in the criminal law gives rise to civil liability. Again, we do not deem it appropriate that we resort to a common-law principle, namely, the doctrine of negligence per se, where the legislature has provided a civil remedy for the wrong declared. Therefore, we conclude that plaintiff cannot ground its right to recover upon defendant's violation of sec. 66.054(9)(b), Stats., because of the legislative preemption of the field of civil liability in enacting sec. 176.35, Stats.

Liability Under Principles of Common-Law Negligence

The complaint alleges that defendant sold intoxicating beverages to the minor Donald Kahler 'in such an amount that defendant and his servants, because of said minor's age and apparent condition, knew or should have known would affect his physical and mental condition so as to make him unfit and incompetent to safely and reasonably operate the motor vehicle entrusted to him by his father * * *.' We deem that this allegation, liberally construed, is sufficient to charge defendant with common-law negligence independent of his violation of a criminal statute.

The general rule is that a vendor of intoxicating liquor is not, at common law, answerable to a third person for injury or damage sustained by the latter as a result of the intoxication of the vendee. Annos. 130 A.L.R. 357, and 75 A.L.R.2d 833 and cases cited therein. Wisconsin in two cases has adhered to the common law rule. Demge v. Feierstein (1936), 222 Wis. 199, 268 N.W. 210, and Seibel v. Leach (1939), 233 Wis. 66, 288 N.W. 774. However, in Seibel this court stated the rule in these words (at p. 67, 288 N.W. at p. 774), 'Under the common law it is not an actionable wrong either to sell or to give intoxicating liquors to an able-bodied...