Laymon v. Braddock

• Decision Date: 10 March 1989
• Citation: 544 So.2d 900
• Parties: Cecil LAYMON and Linda J. Laymon v. Kenneth BRADDOCK, et al. 88-230.
• Court: Alabama Supreme Court

Page 900

544 So.2d 900

Cecil LAYMON and Linda J. Laymon v. Kenneth BRADDOCK, et al.

88-230.

Supreme Court of Alabama.

March 10, 1989.

Rehearing Denied May 5, 1989.

Barry N. McCrary, Talladega, and Donald W. Stewart, Anniston, for appellants.

George A. Monk of Merrill, Porch, Doster & Dillon, Anniston, for appellees.

PER CURIAM.

This is an action brought by Cecil Laymon and Linda J. Laymon, individually, and as parents of Lesia Gayle Laymon, their deceased minor daughter, against Kenneth Braddock; James A. Carson, d/b/a Carson Spur Station; and Michele Jones, ¹ for the wrongful death of Lesia.

Lesia was killed when the automobile she was driving ran off the road and turned over. Lesia was 16 and was not a licensed driver but had her learner's permit. Lesia's former sister-in-law, defendant Michele Jones, who drove the automobile for most of the night of the accident, was in the automobile as a passenger at the time of the accident. Ms. Jones testified that she had purchased a carton containing four bottles of "wine cooler" from Braddock, who was a clerk at the Carson Spur Station, on three different occasions on the night of the accident; that during the first two purchases, Lesia remained in the automobile; that during the third purchase, both Lesia and Ms. Jones went into the Spur Station; that at that time, they were giggling, and that Lesia asked if her eyes were red, if bubble gum would take the alcohol smell off her breath, and made the statement: "I can't go home like this. Mama will slap my face." There was testimony that this statement was made in the presence of Braddock, and that he responded to Lesia's statement by laughing. Braddock and his wife, who was present at the Spur Station, denied that Ms. Jones had purchased any wine coolers from the Spur Station on the night of the accident. Evidence was presented that on the night of the accident Lesia had attended a social function at which alcoholic beverages were served; that Ms. Jones drove most of the night, but that Ms. Jones became emotional and Lesia then drove. After the accident, tests showed that Lesia had a .03% blood alcohol content and that Ms. Jones had a .155% blood alcohol content.

The Laymons' complaint charged Ms. Jones, Braddock, and Carson with negligence, wantonness, and violations of Ala.Code 1975, §§ 6-5-70 and 6-5-71. At the close of all the evidence, the trial court directed a verdict in favor of Braddock and Carson on the common law counts of negligence and wantonness and on the claim under § 6-5-70. Thereafter, the Laymons voluntarily dismissed their common law counts and claim under § 6-5-70 against Ms. Jones. The Laymons' claim under § 6-5-71 was submitted to a jury.

The jury verdict was as follows:

"We, the jury, find in favor of all the defendants, Kenneth Braddock, James A. Carson, and Michele Jones, and against the plaintiffs, Cecil and Linda J. Laymon."

The Laymons' motion for a new trial was denied.

One of the two issues presented for review is whether the trial court erroneously charged the jury regarding the requisite standard of causation under Ala.Code 1975, § 6-5-71. This issue does not involve the failure to give a written requested instruction; it involves only the trial court's oral charge.

In McElmurry v. Uniroyal, Inc., 531 So.2d 859, 859-60, (Ala.1988), this Court held:

"To be timely, an objection to the trial court's oral charge must be made at the close of the court's initial instructions to the jury, and it must be stated with sufficient clarity or specificity to preserve the error--in other words, an exception designating only the subject treated by the court in its oral charge is insufficient. See Rule 51, A.R.Civ.P.; Harper v. GFA Transp. Co., 432 So.2d 1234 (Ala.1983). Although Rule 51 does not contemplate that the objecting party, in order to preserve for appellate review an erroneous instruction, deliver a discourse on the applicable law of the case, he must adequately state specific grounds for his objection.

"... Rule 51, A.R.Civ.P., expressly requires that a party state the grounds for his objection; the failure to do so prevents appellate review of the alleged error." (Citations omitted.) (Emphasis supplied.)

In the case at issue, the Laymons made the following objections, and these are the only objections that pertain in any way to this issue for review:

Attorney for the Laymons: "The others, basically, have to do with a series of charges that commenced by saying that the defendants Braddock and Carson assert a--that it was not as a consequence of, but there was an independent, intervening act or something like that. And then later, much later in the charge the Court was actually charging on that.

"In the case that's been cited, with approval by the Alabama Court, it specifically says that even a remote cause, but one that is in consequence of, is sufficient. I don't have my notes, but I think all would fall within that category, if the Court understands what I'm objecting to.

Court: "All right."

_____

Attorney for the Laymons: "Let me make it clear when I mentioned the word 'remote' a moment ago, and just before that 'intervening,' I'm talking about all the charges, some of which were apparently prepared by the defendant and incorporated, having to do with remote, independent, intervening, and all those words that are more properly, in plaintiffs' contention, we believe happened in proximate causation.

"Which has been replaced by the statute, and the language of the statute, and the language of the court in the Derrick case.

Court: "All right. Those exceptions are noted."

In support of their contention that the oral charge was erroneous, the Laymons cite Bistline v. Ney Bros., 134 Iowa 172, 111 N.W. 422 (1907); McClay v. Worrell, 18 Neb. 44, 24 N.W. 429 (1885); Wilcox v. Conti, 174 Misc. 230, 20 N.Y.S.2d 106 (Sup.Ct.1940); Cross v. Ryan, 124 F.2d 883 (7th Cir.1941), cert. denied, 316 U.S. 682, 62 S.Ct. 1269, 86 L.Ed. 1755 (1942); Weisguth v. Stack, 165 Ill.App. 462 (1911). They also cite Phillips v. Derrick, 36 Ala.App. 244, 246, 54 So.2d 320, 321 (1951), which refers to Bistline v. Ney Bros., supra, in support of the following:

"The above section evidences a policy on the part of the law-making body to discourage the illegal sale of alcoholic beverages. Further, by the very terms of the enactment the person injured by the illegal sale of alcoholic beverages is not held to the usual standards of proof of causal connection between the illegal sale of the beverages and the injury." (Emphasis supplied.)

In the case at issue, the trial court charged:

"[B]efore there could be a verdict in favor of [the Laymons] and against [Braddock and Carson], the damages complained of must again be in consequence of the intoxication of the person....

"....

"Now, this term 'in consequence of the intoxication of a person' is not a phrase that is used often in the law.... [N]ormally, liability will be imposed only when the wrong is the proximate cause of an injury.

"That's not the terminology or the language that we have in this statute. Our statute says there shall be a right of action for the particular persons when in consequence of the intoxication of any person one is wrongfully or contrary to law so disposed or given alcoholic beverages, and caused the intoxication of such person to the damage of the persons who can sue." (Emphasis supplied.)

The trial court further instructed the jury that:

"[A] person selling alcoholic beverages is not responsible for all remote or possible consequences which may result from such a sale. And before there could be a verdict in favor of the plaintiffs and against the defendant, the damages complained of must again be in consequence of the intoxication of the person...." (Emphasis supplied.)

We believe that the trial court's charge sufficiently complied with the following proposition of law in Phillips v. Derrick, supra:

"[T]he person injured by the illegal sale of alcoholic beverages is not held to the usual standards of proof of causal connection between the illegal sale of the beverages and the injury."

Likewise, we believe that the trial court instructed that a person selling alcoholic beverages could be responsible for remote or possible consequences, if the damages complained of were "in consequence of" the intoxication of the person.

The Laymons did not adequately state any other specific grounds for their objection to the trial court's oral charge, and we cannot review further this alleged error. Rule 51, A.R.Civ.P.; McElmurry v. Uniroyal, Inc., supra.

The other issue presented for review was whether the trial court erred in granting Braddock and Carson's motion for directed verdict on the Laymons' claim under Ala.Code 1975, § 6-5-70, which provides in pertinent part:

"Either parent of a minor ... shall have a right of action against any person who unlawfully sells or furnishes spirituous liquors to such minor ... provided the person selling or furnishing liquor to the minor had knowledge of or was chargeable with notice or knowledge of such minority." (Emphasis supplied.)

If there is a purchase of spirituous liquors, the seller has a duty to ascertain that the purchaser is not a minor. There is not a scintilla of evidence that Braddock or Carson sold the wine coolers to Lesia. Wade v. State, 170 Ala. 32, 54 So. 171 (1911), and Liles v. State, 88 Ala. 139, 7 So. 196 (1890), involved a second-party sale subterfuge that was known to, and in Liles participated in by, the seller of spirituous liquor. Those cases are distinguishable from the case at issue. What constitutes "furnishing" spirituous liquors to a minor? Ms. Jones did not purchase the wine coolers and hand one to the minor for her to drink in the presence of the seller, as happened in Page v. State, 84 Ala. 446, 4 So. 697 (1888), and in Salvia's Bar, Inc. v. Pennsylvania Liquor Control Board, 211 Pa.Super. 275, 236 A.2d 839 (1967). There was evidence that Ms. Jones had...