Fladeland v. Mayer, 7873

• Decision Date: 07 April 1960
• Docket Number: No. 7873,7873
• Citation: 102 N.W.2d 121
• Parties: Corrine Betty FLADELAND and Bonnle Kay Fladeland, by her Guardian ad litem, Lioneld Fladeland, Sr., Plaintiffs and Appellants, v. Erwin MAYER, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 121

102 N.W.2d 121

Corrine Betty FLADELAND and Bonnle Kay Fladeland, by her Guardian ad litem, Lioneld Fladeland, Sr. Plaintiffs and Appellants, v. Erwin MAYER, Defendant and Respondent.

No. 7873.

Supreme Court of North Dakota.

April 7, 1960.

Syllabus by the Court.

1. Sale of alcoholic beverages to a minor is an illegal sale of liquor under the Civil Damage Act, Sec. 5-0121, NDRC 1943.

2. Where a minor who purchased alcoholic beverages from a dealer made no statement to the dealer indicating that he was making such purchase for other minors, and facts are not such that the dealer knew or reasonably should have known that the purchaser would give a part of the liquor to other minors, the dealer is not liable under the Civil Damage Act for damages caused by the intoxication of minor who received a part of such liquor from the purchaser.

3. Liability under the Civil Damage Act, Sec. 5-0121 NDRC 1943, for unlawful sale of alcoholic beverages, rests on the seller for damages caused by the intoxication of the immediate buyer only unless the seller knew or reasonably should have known that others would consume a part of such liquor.

Palda, Palda, Peterson & Anderson, Minot, for plaintiffs-appellants.

Ella Van Berkom, Minot, for defendant-respondent.

STRUTZ, Judge. (On reassignment.)

The plaintiff Corrine Betty Fladeland is the widow of Lioneld Fladeland; the plaintiff Bonnie Kay Fladeland is the infant daughter of Corrine and Lioneld Fladeland. The widow and the child, by her guardian ad litem, bring this action for the death of Lioneld allegedly caused by the illegal sale of alcoholic beverages by the defendant, Mayer, such sale having been made under the following circumstances:

The deceased Lioneld Fladeland, together with two minor companions, pooled their resources and had one of the minors, Ronald Lee Robbins, purchase two pints of orange-flavored vodka, an alcoholic beverage. This purchase was made from the defendant, who is a licensed retail liquor dealer at New Sanish, North Dakota. As a result of drinking such alcoholic deverage, Lioneld Fladeland was involved in an automobile acccident in which he suffered injuries resulting in his death.

It is conceded that the sale of such alcoholic beverage to Robbins was an illegal sale, since Robbins was a minor of the age of nineteen years. The plaintiffs contend that the defendant, having made such illegal sale, is liable for damages resulting from the intoxication of the deceased. The defendant, on the other hand, contends that he did not sell such alcoholic beverage to the deceased; that the sale was made to Robbins and, although it was illegal, it cannot be the basis for liability in an action for damages resulting from the drinking of such liquor by the deceased who secured the liquor from Robbins, the party to whom such unlawful sale was made. It is conceded that the three minors pooled their resources and had one of them make the illegal purchase, although there is no evidence in the record to show that the defendant, Mayer, knew that the deceased, Lioneld Fladeland, was to receive any of such liquor. Not does the record disclose any evidence that the sale was made to Robbins by the defendant in the presence of Lioneld Fladeland so that the defendant knew or had reasonable grounds to believe that Lioneld Fladeland would consume a part of the liquor sold.

The trial court dismissed the complaint of the plaintiffs on the ground that there is no legal liability on the part of the defendant to the plaintiffs by reason of the unlawful sale to Robbins and the subsequent intoxication and death of Fladeland.

The sole issue presented on this appeal is whether the widow and minor child of Lioneld Fladeland, a minor, can recover for the loss of support resulting from the death of a minor caused by the drinking of intoxicating beverages which had been sold unlawfully to a minor companion of the deceased by the defendant.

In order to determine whether the plaintiffs have a cause of action under the facts in this case, it is necessary to consider the provisions of the so-called Civil Damage Act, Section 5-0121 of the North Dakota Revised Code of 1943. This section provides for the recovery of damages for illegal sale of liquor, and reads as follows:

'Every wife, child, parent, guardian, employer, or other person who shall be injured in person, property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, shall have a right of action, in his or her own name, against any person who, by selling, bartering, or giving away alcoholic beverages contrary to the provisions of this title, shall have caused the intoxication of such person, for all damages actually sustained as well as for exemplary damages. All damages recovered by a minor under this section shall be paid either to such minor, or his or her parent, guardian, or next friend, as the court shall direct. All suits for damages under this section shall be by civil action in any of the courts of this state having jurisdiction thereof.'

Analyzing the provisions of this statute, there can be no doubt that the deceased's widow and child were injured in their means of support in consequence of the intoxication of Lioneld Fladeland. Does the husband and father, under the circumstances of this case, come within the designation of 'any person,' as used in the phrase 'in consequence of intoxication, * * * of any person, shall have a right of action, * * * against any person who, by selling, bartering, or giving away alcoholic beverages contrary to the provisions of this title, shall have caused the intoxication of such person, * * *'?

Construing the provisions of this statute, it is apparent to this court that the Legislative Assembly was giving to every wife and child injured by any intoxicated person a right of action against any person 'who, by selling, bartering, or giving away alcoholic beverages contrary to the provisions of this title, shall have caused the intoxication of such person, * * *.'

Did the Legislative Assembly intend to hold any person who illegally sold, bartered, or gave away alcoholic beverages illegally, liable for any mischief which that particular alcoholic beverage might cause, regardless of how remote its use might be from the illegal sale, barter, or gift, or did the Legislative Assembly intend to hold the person who illegally sold, bartered,...