Hull v. Rund

• Decision Date: 16 July 1962
• Docket Number: No. 20003,20003
• Citation: 150 Colo. 425,374 P.2d 351
• Parties: Harold L. HULL and Jennie E. Hull, Plaintiffs in Error, v. Paul B. RUND, Defendant in Error.
• Court: Colorado Supreme Court

Page 351

374 P.2d 351

150 Colo. 425

Harold L. HULL and Jennie E. Hull, Plaintiffs in Error, v. Paul B. RUND, Defendant in Error.

No. 20003.

Supreme Court of Colorado, En Banc.

July 16, 1962.

Rehearing Denied Sept. 17, 1962.

Elias J. Candell, Lakewood, for plaintiffs in error.

Hackethal & McNeill, Lakewood, Wormwood, O'Dell & Wolvington, Charles M. Dosh, Denver, for defendant in error.

DAY, Chief Justice.

The parties are here in the same order they appeared in the trial court and will be so referred to. Plaintiffs brought suit against the defendant, sole proprietor of a tavern, for damages for injuries sustained in an altercation in his establishment.

Plaintiffs contended they were patrons in the tavern owned by the defendant and were the victims of an unprovoked attack at the hands of two other patrons of the establishment. Both in the pleadings and at the trial, the action was predicated solely upon the theory that defendant sold liquor to an intoxicated person--one Betty Cunningham--in violation of C.R.S. '53, 75-2-3(2) and C.R.S. '53, 75-2-37(1).

Plaintiffs based their action entirely on the theory of strict liability, predicating their right to recover on the proposition that the statute was violated and that proof thereof ipso facto entitled them to judgment as a matter of law, and contending that there was presented for determination by a jury only a disputed question of fact, namely, whether the patron, Betty Cunningham, was intoxicated at the time she was served additional beers by defendant. Judgment was entered in favor of defendant on his motion for directed verdict at the close of plaintiffs' evidence, the court dismissing plaintiffs' action.

There was no allegation in the complaint and no proof at the trial that defendant failed to exercise due care or failed to protect plaintiffs against unforeseen danger, nor was there any allegation or proof of disregard of the plaintiffs' rights or safety on the part of the defendant. It is admitted that the assault by Betty Cunningham upon one of the plaintiffs, Jennie Hull, took place without warning. Harold Hull was engaged in a fight with Mrs. Cunningham's husband, and that fiasco is not even connected with violation of the statute.

The sold question for determination here is whether the statutes relied upon by plaintiffs give rise to a civil action for damages. The sections of the statute involved read as follows:

'75-2-3. 'Unlawful acts.--It shall be unlawful for any person: * * * (2) To sell malt, vinous or spirituous liquors to any person under the age of twenty-one years, or to an habitual drunkard, or to an intoxicated person, * * *.'

75-2-37. 'Unlawful acts--sign--penalties.--(1) No person shall sell, serve, give away, dispose of, exchange or deliver, or permit the sale, serving, giving or procuring of any malt, vinous or spirituous liquor, as defined by section 75-2-4, to or for any person under the age of twenty-one years, to a visibly...