Hulse v. Driver
| Decision Date | 28 June 1974 |
| Docket Number | No. 874--III,874--III |
| Parties | Boyd HULSE, Appellant, v. Michael DRIVER et al., Respondents. |
| Court | Washington Court of Appeals |
Fred R. Staples, of Staples & Felstad, Pasco, for appellant.
Hugh B. Horton of Horton, Wilkins & Faurholt, Kennewick and Leavy, Taber, Schultz & Bergdahl, Pasco, for respondent McCurry.
Gregory L. Lutcher of Freise & Lutcher, Walla Walla, for respondent Richard Bruce.
Mike R. Johnston of Campbell & Johnston, Pasco, for respondent Garth E. Driver, and wife.
Wayne Murray of Murray, Dunham & Waitt, Seattle, and Peterson, Taylor & Day, Pasco, for respondent Donald Brown.
Plaintiff, Boyd Hulse, appeals from a summary judgment granted in favor of all respondents in an action based upon an automobile accident. Respondents, Richard Bruce, Donald Brown and James K. McCurry, were passengers in an automobile driven by defendant, Michael Driver. Respondents, Dorothy M. and Garth E. Driver, the parents of Michael Driver, were not occupants of the Driver vehicle at the time of the accident. No appeal is taken from a summary judgment entered against the defendant, Michael Driver, nor from one entered in the favor of defendants, James H. and Lorraine L. McCurry, the parents of respondent, James K. McCurry.
The accident occurred the evening of September 29, 1972, on Highway 12, 2 miles south of Pasco. Michael Driver negligently drove his vehicle into the oncoming lane of traffic and collided head-on with plaintiff's vehicle. All occupants of the Driver vehicle were minors at the time of the accident.
The deposition of Donald Brown indicates that on the morning of September 29 he purchased a 6-pack of beer which he and Michael Driver drank. They each contributed one-half to the purchase price. That afternoon Brown purchased '(p)robably half a case' with money contributed by himself, Michael Driver and Richard Bruce. Part of that beer was apparently consumed while driving around in Michael Driver's vehicle. More beer may have been purchased during the day, but Brown did not recall any specific additional purchases.
Later that afternoon, Driver, Brown and Bruce met respondent James K. McCurry. The depositions of the parties indicate these young men contemplated going to a dance later that evening. To pass the time, McCurry suggested they go to Walla Walla to purchase onions for his immediate superior at the place of his employment. Acting upon his suggestion, they proceeded, uneventfully, to Walla Walla in the Driver vehicle, with Michael Driver driving.
In Walla Walla, the four of them entered a grocery store and purchased two bottles of wine. As in the other liquor purchases, each equally contributed money toward the purchase price. They went to the check-out stand together; Donald Brown again acted as the conduit, or the actual purchaser of the wine.
They then proceeded toward Pasco with Michael Driver driving. Each of the boys apparently drank his share of the wine; it was consumed in its entirety. McCurry fell asleep sometime prior to the collision.
The two respondents who remained awake, Richard Bruce and Donald Brown, complained to Michael Driver that he was becoming careless in his driving and suggested someone else drive. The car was stopped. Richard Bruce drove for approximately 5 miles before the car was again stopped, ostensibly to let Donald Brown drive. However, Michael Driver, seated on the passenger side of the front seat, slid over and again assumed the driving responsibilities. Both Bruce and Brown stated they tried to talk Michael Driver out of driving, but he insisted on driving his own vehicle. Soon thereafter, the accident occurred.
Plaintiff first contends that the court erred in entering summary judgment in favor of respondents Richard Bruce, Donald Brown and James K. McCurry, inasmuch as the record shows that they 'furnished' liquor to Michael Driver, a minor with knowledge of his minority, and with knowledge that he would be driving an automobile on the public highways in an intoxicated condition. Plaintiff contends the common law imposes liability for any proximately caused injury upon one who furnishes liquor under these conditions.
In Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969), defendants gave a Christmas party for its employees and furnished food and refreshments, including alcoholic beverages. An employee of defendants, Mr. Wolf, attended the party, allegedly became intoxicated, and left the party. As he drove home, he struck and severely injured plaintiff. Oliver Halvorson. As one ground for recovery, plaintiffs alleged that defendants were guilty of negligence because they furnished intoxicants to Mr. Wolf knowing he was intoxicated and unable to properly operate a motor vehicle. The trial court granted defendants' motion to dismiss on the ground that the complaint and opening statement failed to state a claim upon which relief could be granted. The judgment was affirmed by the Supreme Court.
The majority in Halvorson holds that the sale or furnishing of an intoxicant to an able-bodied person at a social event does not create a cause of action against the furnisher for a tort committed by the consumant. In the instant case, Michael Driver and respondent passengers were engaged in a social activity. There was no commercial furnishing of liquor by any of the respondents to Michael Driver. At most, there was a supplying or furnishing of liquor by respondents to this defendant in a purely social setting. 1 Thus, no cause of action lies against these respondents.
Plaintiff contends, however, that Halvorson is distinguishable because defendant Michael Driver is a minor; that the giving or supplying of liquor to a minor, with knowledge that he is a minor, is a misdemeanor (RCW 66.44.270 2) and, hence, constitutes negligence per se. 3
Halvorson requires a contrary conclusion. Quoting from 30 Am.Jur. Intoxicating Liquors § 520 (1958), the court in Halvorson, 76 Wash.2d at page 762, 458 P.2d at page 899, stated:
'It is generally held that there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished, even though the liquor was sold or given to one in violation of a law other than under a civil damage act, so long as the person to whom the liquor was sold or given was not in such a state of helplessness or debauchery as to be deprived of his will power or responsibility for his behavior.'
Such reasoning dictates that liquor furnished to one in violation of a criminal prohibition, such as RCW 66.44.270, does not, alone, impose civil liability upon a furnisher.
Furthermore, the court in Halvorson, 76 Wash.2d at page 765, 458 P.2d at page 900 continues--
It may be that the social and economic consequences of 'mixing gasoline and liquor' should lead to a rule of accountability by those who furnish intoxicants to one who becomes a tort-feasor by reason of intoxication, But such a policy decision should be made by the legislature after full investigation, debate and examination of the relative merits of the conflicting positions. Accord, Hamm v. Carson City Nugget, Inc., (85) Nev. (99), 450 P.2d 358 (1969). Also see Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965). The legislature has provided for civil liability of a person furnishing intoxicants to one who has been adjudged an habitual drunkard. RCW 71.08.080. 4 We do not believe that we should judicially extend this legislative act.
(Italics ours.)
The same reasoning is applicable to one who furnishes alcoholic beverages to a minor in a social context, with knowledge that said person is a minor. This is particularly true under the facts of this case, where the alleged furnishers of the alcoholic beverages were also minors. At present, there is no legislation imposing civil liability; if such is to be imposed, it should be by legislative mandate. The trial court was correct. 5
Plaintiff next contends the court erred in holding the doctrine of negligent entrustment inapplicable. They contend that while returning from Walla Walla, respondent Richard Bruce was substituted as driver of the vehicle in place of defendant Michael Driver. Knowing that Michael Driver was under the influence of liquor, the respondent passengers negligently permitted Michael Driver to resume driving the automobile. We disagree.
It is the general rule that an owner or other person in control of a vehicle and responsible for its use, who entrusts the vehicle to another, may be held liable for damages resulting from the use of the vehicle, under the theory of negligent entrustment, where he knew, or should have known in the exercise of ordinary care, that the person to whom the vehicle was entrusted was intoxicated at the time of the entrustment. Mitchell v. Churches, 119 Wash. 547, 206 P. 6 (1922) (); Atkins v. Churchill, 30 Wash.2d 859, 194 P.2d 364 (1948) (); General Valet Service, Inc. v. Curley, 16 Md.App. 453, 298 A.2d 190 (1973), rev'd based upon sufficiency of the evidence, Curley v. General Valet Service, Inc., 270 Md. 248, 311 A.2d 231 (1973); Stafford v. Far-Go Van Lines, Inc., 485 S.W.2d 481 (Mo.Ct.App. 1972); Annot. 19 A.L.R.3d 1175--1182, 1192 (1968); 60A C.J.S. Motor Vehicles § 431(1), (2) (1969); Restatement (Second) of Torts § 390 (1965).
In this case, however, the 'negligent entrustment' by the respondent passengers was To the owner of the automobile. To invert the doctrine under the circumstances posited in this case is illogical. By analogy to bailor-bailee relationship, the rationale is well stated in Mills v. Continental Parking Corp., 86 Nev. 724, 475 P.2d 673, 674 (1970) as follows:
The negligent entrustment theory of tort liability does not apply to the normal...
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