Lee v. Peerless Ins. Co.

• Decision Date: 23 February 1966
• Docket Number: No. 47816,47816
• Citation: 248 La. 982,183 So.2d 328
• Parties: Ben M. LEE v. PEERLESS INSURANCE COMPANY et al.
• Court: Louisiana Supreme Court

Page 328

183 So.2d 328

248 La. 982

Ben M. LEE v. PEERLESS INSURANCE COMPANY et al.

No. 47816.

Supreme Court of Louisiana.

Feb. 23, 1966.

H. F. Sockrider, Jr., Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for applicant.

Joseph R. Bethard, Shreveport, for respondent.

FOURNET, Chief Justice.

We granted a writ of certiorari ¹ on plaintiff's application in order that we might review the judgment of the Court of Appeal for the Second Circuit affirming the judgment of the trial court dismissing, on defendants' peremptory exception of no cause of action ² (based on allegations of the petition assertedly disclosing plaintiff contributed to his own injury), his suit to recover damages from the defendant nightclub owner and the owner's insured for injuries sustained when he was hit on the highway by a moving vehicle after having been ejected from the nightclub adjacent to the highway in an intoxicated condition. See, 175 So.2d 381.

The operative facts giving rise to the cause of action as set out in plaintiff's petition are succinctly summarized in his counsels' brief in this court as follows:

'On the afternoon of June 27, 1963, relator and friends arrived in Shreveport, Louisiana, for both business and pleasure. At about 9:00 o'clock p.m., they went to Sak's. ³ Upon his arrival, relator was 'under the influence of liquor,' having previously 'imbibed some alchoholic beverage;' however, 'he was not drunk, but to the contrary, was rational and in control of his faculties.' From 9:00 o'clock p.m. until 1:00 o'clock a.m. relator was repeatedly 'coaxed to drink and Plied with drinks by employees of Sak's,' until he became so intoxicated that 'he could barely walk, falling down a number of times.' This coaxing and plying continued in spite of Sak's employees' knowledge and awareness of relator's helplessness and befuddlement, until the number of drinks consumed reached somewhere between 30 and 40.

'When it came time for Sak's to close (around 1:30 o'clock a.m.), relator 'was Required to leave the building of Sak's' and he was 'turned out on its premises adjacent to Highway 80.' This was done by the employees of Sak's notwithstanding their full awareness of 'his inability to look after himself.' Immediately following this ejectment relator wandered into Highway 80, where 'on account of his helplessness' and his inability to 'take account of traffic,' he was run down by a vehicle travelling thereon.'

In the alternative, plaintiff invokes the last clear chance doctrine based on the following allegations as summarized in brief, and which are asserted to be the heart of relator's cause:

'* * * shortly after 9:00 o'clock p.m. a point in his intoxication was reached when the employees of Sak's were 'well aware of his condition and knew that continued drinking was deleterious and harmful' to him. He continues by alleging that had Sak's employees desisted in their negligence At that time, which it was their duty to do, relator 'would have regained his faculties' prior to the time he was ejected; that is, between then (9:30 p.m.) and the time he was ejected (1:30 a.m.), He would have sobered up sufficiently to exercise self-protective care.'

The rule of law universally obtaining, and controlling under our jurisprudence, ⁴ is succinctly set out in Corpus Juris Secundum as follows:

'At common law, and apart from statute, ⁵ 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 * * *. 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, p. 716. See, also, 65 C.J.S. Negligence § 143, p. 784; 30 Am.Jur. 824, Intoxicating Liquors, Section 525; 54 A.L.R.2d 1152.

However, counsel for plaintiff contend that Louisiana, by the adoption of R.S. 26:88, ⁶ abrogated this common law rule and created, By implication, a right to recover civil damages in those persons intended to be protected thereunder irrespective of the defense of contributory negligence, as such statutes have, in other states, been interpreted in the light of Sections 285, 286, and 483 of the Restatement of the Law of Torts, Second Edition, ⁷ and it is clear thereunder that R.S. 26:88 was intended to protect not only the public, but an uncompetent, such as an intoxicated person, against his own incompetency.

An exhaustive research of all of the cases on this subject, including those relied on by plaintiff, ⁸ reflects the law to be as hereinabove stated, and from our appreciation of the legislative intent in adopting Act 360 of 1948, on which Title 26 of the Revised Statutes, is predicated, we cannot say this body thereby abrogated the common law in this respect and created, by implication, a right to recover civil damages in those persons not entitled to recover such damages under the common law, as has been done by a number of the states, among whom are, in particular, those now or formerly having civil damage or 'dramshop' statutes, ⁹ and upon whose jurisprudence in this respect plaintiff's counsel largely rely. ¹⁰

As was very aptly pointed out by Prosser in his work on torts, whether contributory negligence '* * * is a bar to the liability of a defendant who has violated a statutory duty is a matter of the legislative purpose which the court finds in the statute. If it is found to be intended merely to establish a standard of ordinary care for the protection of the plaintiff against a risk, his contributory negligence with respect to that risk will bar his action, as in the case of common law negligence.' Section 64, page 435, of the Third Edition.

Louisiana has never had on its statute books a civil damage or 'dramshop' act, and has never adopted a code based on the American Law Institute's model Restatement of the Law of Torts. Article 26:88 of the Revised Statutes is criminal in nature, levying a fine and/or imprisonment for its violation, although it does specifically provide that violation of the acts therein prohibited shall be ground for the suspension and revocation of permits, as does R.S. 26.89 also, which is headed: 'Additional causes for suspension or revocation of permits.' For us to hold that R.S. 26:88, By implication, abrogates the common law on this subject, as contended by counsel representing the plaintiff, would require us to exercise legislative prerogatives which, under our state and national constitutions, the judiciary is prohibited from doing. See, Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900, decided in July 1965 in New Hampshire.

Had the legislature intended this result by the adoption of its Act 360 of 1948 and R.S. 26:88, it could have said so in a few plain and simple words. Our conclusion that such a result was not intended is fortified by the fact that although there have been for a number of years decisions at the appellate court level invoking and following the common law in this respect, although this court has heretofore had no case in point presented to it, the legislature, although meeting with regularity since these decisions, has taken no steps to adopt clarifying legislation or require this extraordinary care of intoxicated persons frequenting public places selling and dispensing alcoholic beverages. See, McAllister v. Travelers Ins. Co., La.App., 121 So.2d 283; Robinson v. Fidelity & Casualty Co., 135 So.2d 607, certiorari denied by us; Manuel v. United States Fire Ins. Co., La.App., 140 So.2d 702. See, also, for an excellent exposition of the law in this respect the landmark case of Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450, 54 A.L.R.2d 1137.

A mere reading of the cases relied on by plaintiff ¹¹ as the basis for invoking the doctrine of last clear chance, designed to protect persons who negligently place themselves in a position of peril or danger, easily reflects they are inapplicable to the facts of this case, and, therefore, not controlling, as this doctrine can be invoked only where the person inflicting the injury for which damages are sought (1) actually discovered the peril of the injured party or was in a position to discover it, and (2) could, at that time, have avoided the accident by the exercise of ordinary or reasonable care. See, the annotation at 26 A.L.R.2d 308.

For the reasons assigned, the judgment of the Court of Appeal for the Second Circuit is reinstated and made the judgment of this court.

SANDERS, Justice (dissenting).

This case raises serious questions vitally affecting delictual responsibility in Louisiana. Because of its importance to our jurisprudence, I must record my dissent. I do so with utmost deference to the views of my brethren, who have dismissed the suit without trial.

Plaintiff Lee sustained disabling injuries when an automobile struck him on the highway bordering Sak's nightclub, after he had been ejected from the club in an intoxicated condition. He sued Kimmerly, owner of Sak's, and Peerless Insurance Company, has insurer, for damages.

The petition alleges: Sak's is a night club located on U.S. Highway 80 in Bossier Parish. The highway serves as the only exit from the night club premises. It is a four-laned, transcontinental highway, heavily traveled by vehicles moving at a high rate of speed.

Sak's offers late evening entertainment in its Boom Boom Room, built around the sale of intoxicating liquor through waitresses who coax customers to drink.

At about nine p.m. on June 27, 1963, plaintiff Lee went to Sak's Boom Boom Room with friends. Although Lee had been drinking alcoholic beverages before that time, he was not yet intoxicated. He ordered a few drinks, and thereafter, coaxing him to drink more, the waitresses plied him with liquor.

He became very...