Keaton v. Kroger Co.

• Decision Date: 08 July 1977
• Docket Number: Nos. 53847-53849,No. 3,s. 53847-53849,3
• Citation: Keaton v. Kroger Co., 143 Ga.App. 23, 237 S.E.2d 443 (Ga. App. 1977)
• Parties: Frances P. KEATON et al. v. The KROGER COMPANY et al. W. E. KEATON et al. v. The KROGER COMPANY et al. Jane O. CHANCEY v. The KROGER COMPANY et al
• Court: Georgia Court of Appeals

Page 443

237 S.E.2d 443

143 Ga.App. 23

Frances P. KEATON et al. v. The KROGER COMPANY et al.

W. E. KEATON et al. v. The KROGER COMPANY et al.

Jane O. CHANCEY v. The KROGER COMPANY et al.

Nos. 53847-53849.

Court of Appeals of Georgia, Division No. 3.

July 8, 1977.

Rehearing Denied July 21, 1977.

Malone & Percilla, Thomas William Malone, Albany, Frank S. Twitty, Camilla, H. P. Burt, Albany, for appellant Frances P. Keaton.

Landau & Davis, Edmund A. Landau, Jr., Devine, Wilkin, Deriso & Raulerson, E. B. Wilkin, Jr., C. Nathan Davis, Albany, for appellee Kroger Co.

Twitty & Twitty, Frank S. Twitty, Camilla, for appellant W. E. Keaton.

Burt, Burt & Rentz, H. P. Burt, Albany, for appellant Jane O. Chancey.

MARSHALL, Judge.

The appellants are plaintiffs in a wrongful-death action brought after their children were killed in an automobile accident; in addition the appellant in case No. 53847 seeks damages for another child's injury sustained in the same accident. The action was originally brought against Robert DeReus, a minor, and Marvin DeReus, his father; the younger DeReus was the driver of a car which struck that occupied by the appellants' children, and the elder DeReus was the owner of the car being driven by his son. The Kroger Company was added as a defendant subsequent to the filing of the original action.

The Kroger Company moved for and received summary judgment, and the plaintiffs below appeal. The record is voluminous, and, construing the evidence offered therein against Kroger and in favor of the plaintiffs' claim under the procedural posture of the case, the following facts appear: On the day in question, the younger DeReus was in possession of his father's car and had as passengers therein several other teenage friends. These minors decided to drive to the Kroger store to purchase beer; apparently the store had a reputation among local high school students as an establishment where beer could be obtained by them, and these juveniles had themselves secured beer there on previous occasions. The minors pooled their resources and gave the common funds to one youth; four of them then entered the store, and each took an eight-pack of beer to the check-out counter where the juvenile with the merged funds attempted to pay for the purchase. The bag boy at the check-out line was a fellow classmate, and told the cashier to ask for identification to determine the age and eligibility to buy beer; the cashier did ask for and was shown the youth's driver's license. The license indicated the purchaser's age to be sixteen; the cashier's deposition indicates that she made an arithmetical miscalculation, erroneously concluded the minor to be twenty years of age, and sold him the beer. The youths left the Kroger store with thirty-two bottles of beer, and proceeded to drive around, visiting several places. The driver of the car, young DeReus, apparently shared in the consumption of the purchased beer. While driving at an excessive speed, he ran his automobile through a stop sign, and struck another vehicle in the intersection; five persons were killed in the crash. The record shows that the driver DeReus' blood sample indicated 0.10% by weight of alcohol at the time of the accident.

The Kroger Company urges that, upon this evidence, there was no genuine issue of material fact, and that it was entitled to judgment as a matter of law. The trial judge agreed. The issue as we perceive it is this: What is the liability of one who supplies alcohol to a minor, for injuries sustained by another at the hands of the intoxicated minor? Held :

At common law there could be no recovery by one injured by an intoxicated person from the party who supplied the intoxicant. In Belding v. Johnson, 86 Ga. 177, 180, 181, 12 S.E. 304, 305 (1890), our Supreme Court held: "There are many cases in the reports where recoveries have been had against barkeepers for injuries arising from the sale of liquor to persons, but all of them, so far as we have ascertained, . . . are founded wholly upon special statutes authorizing recovery for such injuries. In no other State has the right to recover been placed upon common law principles; and several of the courts, in discussing the question, say that no recovery could be had at common law. As we have no special statute in this State authorizing such recovery, . . . we affirm the judgment of the court below sustaining the demurrer and dismissing the case." That case (brought by a third party injured by the intoxicated person), also discussed two Georgia statutes on negligence that might have possible application, but rejected these statutes as not having appositeness because, in addition to the absence of a special statute, the facts of the case indicated that the damages claimed were too remote.

Since the decision in Belding v. Johnson, supra, Ga.L. 1937-38, Extra.Sess., pp. 103, 118 (Code § 58-1061) was enacted, making the supply of liquors to minors, intoxicated persons and habitual drunkards a misdemeanor. That statute received consideration in Henry Grady Hotel Co. v. Sturgis, 70 Ga.App. 379, 28 S.E.2d 329 (1943). At page 385, 28 S.E.2d at page 333 of that opinion, it was held: "At common law there was no right of recovery for selling or furnishing intoxicating liquor to an intoxicated person . . . (T)he courts have no authority to grant recoveries or authorize actions unknown to the common law. That is a matter for the legislature."

We did not, at the time of Belding, as that court held, have a "special statute in this State authorizing such recovery." 86 Ga. 177, p. 181, 12 S.E. 304, p. 305. And, clearly, § 58-1061 is not such a statute. While it is true that the acts of furnishing liquor to minors, intoxicated persons and habitual drunkards were first made criminal by § 58-1061 in the 1937-38 liquor Act, which was subsequent to Belding, it does not follow that that statute should therefore be regarded as the "special statute" referred to in the Belding decision.

Belding was decided in 1890. By that time, it had long since been unlawful to furnish liquor to minors (Ga.L. 1875, p. 102), to intoxicated persons (Code of 1863, § 1381; Ga.L. 1888-89, p. 140) and to habitual drunkards. (Ga.L. 1882-83, p. 130) Those were the provisions which were carried forward in the various codes and which now appear as Code Ann. §§ 58-611, 58-612, with duplication in § 1061. Since they were of force at the time of Belding, they were thus held to afford no basis for civil recovery when that court ruled "we have no special statute in this State authorizing such recovery." ¹

The decision in Henry Grady Hotel Co. v. Sturgis, 70 Ga.App. 379, 28 S.E.2d 329, supra, is consistent with the common law. In that case, it was held that the selling, to a person listed by the statute, of intoxicants, is a criminal offense and negligence per se insofar as injuries to the purchaser may be concerned. But, in addition, the case holds at pages 385-386, 28 S.E.2d at p. 333: "At common law there was no right of recovery for selling or furnishing intoxicating liquor to an intoxicated person. Belding v. Johnson, 86 Ga. 177, 12 S.E. 304, 11 L.R.A. 53. Whatever the reasons for such a rule, and whether we agree or disagree with them, the courts have no authority to grant recoveries or authorize actions unknown to the common law. That is a matter for the legislature. As was said in Seibel v. Leach, 233 Wis. 66, 288 N.W. 774, 'Courts may in proper instances apply old rules to newly created conditions, but they cannot create new rules for conditions already regulated. The common-law rule holds the man who drank the liquor liable and considers the act of selling it as too remote to be a proximate cause of an injury caused by the negligent act of the purchaser of the drink.' ". The Henry Grady case, supra, then, looks to the facts of the death therein involved. In general, the facts show only that hotel employees furnished Sturgis money with which Sturgis either purchased or caused to be purchased liquor, and that, ultimately, the ingestion of liquor directly contributed to Sturgis' death. The opinion concluded that the statute involved (§ 58-1061) did not prohibit the furnishing of money with which liquor might be bought (and thus was not relevant), but the case was not dealing with injuries to a person other than the intoxicated one. Thus, the decision in the Henry Grady Hotel case did not turn on the possible liability of the seller of liquor for injuries inflicted upon a third party, and, in fact, that rationale was not accepted in that case, and was expressly rejected in the Belding case.

As was recognized in the Belding case, Georgia has no dram-shop or civil-damage statute imposing vicarious liability on the seller of liquor for injury inflicted by the intoxicated or minor purchaser upon a third party; therefore, liability must be found within the rules of the common law. The general rule is stated at 48 C.J.S. Intoxicating Liquors § 430, pp. 716, 717, which provides: "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 . . . While civil damage laws have been enacted in a number of jurisdictions creating a right of action against the dispenser of intoxicating liquors, . . . a remedy exists only to the extent provided for by such statutes, and the common-law rule prevails in a case not coming within their terms, or in jurisdictions where such statutes have not been enacted or are not in effect."

Cases cited by the plaintiff are from jurisdictions which have abrogated the common-law rule of nonliability, this abrogation being necessary to do away with the proximate-cause principle of the common law, which holds the person who drank the liquor liable, and considers the act of selling it as too remote to be a proximate cause of an injury resulting from an...