Griffin v. Sebek

• Decision Date: 15 September 1976
• Docket Number: No. 11623,11623
• Citation: 245 N.W.2d 481,90 S.D. 692
• Parties: Robert James GRIFFIN and Raymond Griffin, Plaintiffs and Appellants, v. Roland SEBEK and Mary Ann Sebek, Individually and doing business as Sebek's Tavern, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 481

245 N.W.2d 481

90 S.D. 692

Robert James GRIFFIN and Raymond Griffin, Plaintiffs and Appellants, v. Roland SEBEK and Mary Ann Sebek, Individually and doing

business as Sebek's Tavern, Defendants and

Respondents.

No. 11623.

Supreme Court of South Dakota.

Sept. 15, 1976.

Richardson, Groseclose, Kornmann & Wyly, Aberdeen, Conmy, Feste & Bossart, Ltd., Fargo, N.D., for plaintiffs and appellants.

Holland & Brantseg, Sisseton, for defendants and respondents.

COLER, Justice.

Appellants, the son and his father, respectively, commenced this action for damages based upon the theory of negligence of respondents, as a licensed on-sale and off-sale dealer in alcoholic beverages, in an alleged unlawful sale of intoxicants.

The trial court granted respondents' motion to dismiss the action for failure to state a claim upon which relief can be granted pursuant to SDCL 15--6--12(b) (5). The appeal is from that order which determined the action on its merits. SDCL 15--26--1(2), 15--26--1(4). We affirm.

The facts of the case are reflected only in the complaint and the briefs of the parties as no responsive pleading was made or filed and no matters outside the pleading were presented to the court to require the motion to be treated as a motion for summary judgment. RCP 12(b), RCP 56.

Appellants allege that respondents, as licensed dealers, violated laws of both South Dakota and North Dakota by selling alcoholic beverages on a Sunday, April 30, 1972, throughout the early morning hours to seventeen-year-old Robert James Griffin and his companion, eighteen-year-old David L. Hager, and that respondents continued to sell intoxicants to the latter after he became intoxicated, contrary to SDCL 35--4--78. It is further claimed that respondents sold intoxicants contrary to the provisions of SDCL 35--4--81.1, i.e., Sunday sales. In their brief appellants seem to acknowledge that the alcoholic beverage sold was low-point beer, which is governed by SDCL 35--6. Low-point beer is generally excluded from the provisions of SDCL 35--4 by SDCL 35--4--1 except as provided in SDCL 35--6--27. Assuming that it might be established that respondents violated the provisions of SDCL 35--6--27 or some other statute, the question presented by appellants' brief is whether in the absence of a Civil Damage Act, otherwise referred to as a 'Dram Shop Act,' the common law now authorizes or should be liberalized to afford a remedy. In this instance, the remedy we are asked to provide would authorize recovery against a licensee to both a person who was sold an alcoholic beverage and is injured in a motor vehicle accident in North Dakota, alleged to have been caused by an intoxicated driver to whom respondents also supplied an alcoholic beverage, and to the father of a minor so injured and who incurred substantial medical expense for his son's care.

After a thorough review of the legislative history of civil damage acts and dramshop acts in this state, as well as the numerous decisions of this court construing those acts, we decline the invitation to so legislate. This court, early in its history, stated 'That the creation of rights and remedies in these civil damage acts is a proper exercise of legislative power has been so long settled that no citation of authorities is necessary.' Kennedy v. Garrigan, 1909, 23 S.D. 265, 121 N.W. 783.

Appellants acknowledge the general rule that:

'At common law, and apart from statute, no redress exists against persons selling giving, or furnishing intoxicating liquor, or their sureties, for resulting injuries or damages due to the acts of intoxicated persons, whether on the theory that the dispensing of the liquor constitutes a direct wrong or constitutes actionable negligence, and, there being no remedy in favor of the person injured, no remedy may be asserted by his surviving spouse. This rule is based on the theory that the proximate cause of the injury is the act of the purchaser in drinking the liquor and not the act of the vendor in selling it.' 48 C.J.S. Intoxicating Liquors § 430. See also 75 A.L.R.2d 835.

Appellants claim, however, that the modern and more liberal view expressed by the New Jersey court in Rappaport v. Nichols, 1959, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821, which, absent a dramshop act, permitted cases such as the one at bar to go the jury on common law negligence, should be adopted by this court. Granted that Rappaport v. Nichols, supra, has been quoted with favor and indeed followed in several jurisdictions, see Waynick v. Chicago's Last Department Store, 1959, 7 Cir., 269 F.2d 322, 77 A.L.R.2d 1260; Berkeley v. Park, 1965, 47 Misc.2d 381, 262 N.Y.S.2d 290; Elder v. Fisher, 1966, 247 Ind. 598, 217 N.E.2d 847; Adamian v. Three Sons, Inc., 1968, 353 Mass. 498, 233 N.E.2d 18, it is observed that the New Jersey court recognized that the legislative activity of that state in the area was limited. As stated by that court, 'During prohibition days, New Jersey had a Civil Damage Law which imposed strict liability for compensatory and punitive damages upon unlawful sellers of alcoholic beverages. See L.1921, c. 103, p. 184; L.1922, c. 257, p. 628. The law was repealed in 1934 (L.1934, c. 32, p. 104) along with other miscellaneous liquor enactments in the light of the abandonment of prohibition and its replacement by the Alcoholic Beverage Control Act, L.1933, c. 436, p. 1180; R.S. 33:1--1 et seq., N.J.S.A.' Rappaport v. Nichols, supra.

Had our legislature failed to consider the evil to be remedied for a like period of time some justification might be found for this court's embarking on such a course. However, the statutory history in this state does not reflect callousness or lack of legislative concern or action.

During the two periods in this state's history in which we experienced prohibition, that is from the years 1890 to 1896 and again from 1917 to 1935, as evidenced by the historical note following S.D.Const. Art. XXIV, the right of action against illicit sellers of intoxicating liquor was granted to various classes of persons under varying degrees of proof and during each period both actual and exemplary damages could be recovered. ¹

Following the repeal of the then provisions of Article XXIV of the Constitution of the State of South Dakota, by a vote of the people in November 1896 pursuant to the Laws of 1895, Ch. 38, the legislature carried forward similar provisions imposing liability upon licensed dealers and also authorized an action on the bond of the licensee.

When liquor was again legalized the legislature, by the Laws of 1897, Ch. 72, § 6 as amended by the Laws of 1901, Ch. 141, § 3 and codified as R.Pol.C.1903, § 2839, required the execution of a bond by a licensee in the sum of $2,000 and further provided, in part, that

'in all actions brought upon said bond for damages by reason of the violation of any of the provisions thereof, the plaintiff in such action shall, in the event of recovering a judgment of any amount, also recover his costs of suit.'

The foregoing provision related back to a covenant required to be in the bond, the recital being as follows:

'Whereas, the said principal has covenanted and agreed and doth hereby covenant and agree, as follows, to-wit: That he will not directly or indirectly by himself, his clerk, agent or servant at any time sell, furnish, give or deliver any spirituous, malt, brewed, fermented or vinous liquors, or any mixed liquors, or any mixture or compound, any part of which is spirituous, malt, brewed, fermented or vinous liquors to a minor or to any adult person whatever who is at the time intoxicated, nor to any person in the habit of getting intoxicated, when notified in writing that such person is in the habit of getting intoxicated nor to any person when forbidden in writing to do so by the husband, wife, parent, child, guardian or employer of such person or by the supervisor of the township, mayor of the city or president or a trustee of any town or member of the board of county commissioners of the county in which such person shall reside or temporarily remain, that he shall also pay all damages, actual and exemplary, that may be adjudged to any person or persons for injuries inflicted upon him or them either in person or property or means of support or otherwise by reason of his selling, furnishing, giving or delivering any such liquor. Now the conditions of this obligation are such that if said principal shall well and truly keep and perform all and singular the foregoing covenants and agreements and shall pay any judgment for actual or exemplary damages which may be recovered against him in any court of competent jurisdiction and all fines and costs that may be imposed upon him for any violation of this act, then this obligation shall be void and of no effect, otherwise the same shall be in full force and effect.'

In addition to the foregoing provision the procedure was established and the parties to whom the right of a cause of action enured were spelled out in the Laws of 1897, Ch. 72, § 16, as codified in R.Pol.C.1903, § 2849 as follows:

'The damages in all cases arising under this article, together with the costs of suits, shall be recovered in an action before any court of competent jurisdiction; and in any case where parents shall be entitled to such damages, either the father or mother may sue alone therefor, but the commencement of suit and recovery by one of said parties shall be a bar to the suit brought by the other. And it shall be lawful for any married woman or any other person at her request to institute and maintain in her own name a suit on any such bond mentioned in this article for all damages sustained by her or by her children on account of such traffic; and the money when collected shall be paid over for the use of herself and children. On the trial of any suit under the provisions of this article the cause and foundation whereof shall be the acts done or injuries inflicted by a person...