Leimkuehler v. Myers, WD41446

• Decision Date: 10 October 1989
• Docket Number: No. WD41446,WD41446
• Citation: Leimkuehler v. Myers, 780 S.W.2d 653 (Mo. App. 1989)
• Parties: Lynn Eugene LEIMKUEHLER, Plaintiff-Appellant, v. Michael Everett MYERS, and Darlene Johnson, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 653

780 S.W.2d 653

Lynn Eugene LEIMKUEHLER, Plaintiff-Appellant, v. Michael Everett MYERS, and Darlene Johnson, Defendants-Respondents.

No. WD41446.

Missouri Court of Appeals Western District.

Oct. 10, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Nov. 28, 1989.

James A. Rahm, Rahm and Crawford, Carrollton, for plaintiff-appellant.

Robert G. Russell, Wesner, Kempton and Russell, Sedalia, Robert L. Rasse, Rasse & Rasse, Marshall, for defendants-respondents.

Before SHANGLER, P.J., and TURNAGE and KENNEDY, JJ.

TURNAGE, Judge.

Lynn Eugene Leimkuehler brought suit against Michael Everett Myers and Darlene Johnson for injuries he sustained in an automobile accident. The court dismissed the petition for failure to state a cause of action. Affirmed.

The petition alleged that Leimkuehler was a passenger in an automobile operated by Clark Iman who was under the age of 21. The petition alleged that Myers was also a passenger in the automobile and that he was over 21. It was alleged that on December 30, 1982, Myers negligently purchased intoxicating beer or liquor from Johnson, who operated a package liquor store. The petition further alleged that Iman was intoxicated when Myers made the purchase.

The petition alleged that Johnson was negligent in selling intoxicating beer or liquor to Myers knowing that it was to be consumed by Iman who was under the age of 21.

It was alleged that Iman consumed the intoxicating beer or liquor purchased by Myers and thereafter drove his automobile in an intoxicated condition and drove off the traveled portion of the road and overturned causing serious injury to Leimkuehler.

Leimkuehler contends that the petition stated a cause of action against Myers and Johnson on common law principles and under § 311.310, RSMo 1986.

In Harriman v. Smith, 697 S.W.2d 219, 221 (Mo.App.1985), it was stated that no cause of action existed at common law against one who furnished, by sale or gift, intoxicating liquor to a person who became voluntarily intoxicated and thereafter injured another. The common law theory was that the consumption of alcohol, and not the supplying thereof, was the proximate cause of injury. Harriman was approved in Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547, 553 (Mo. banc 1987). Under the common law it was the consumption by Iman of intoxicating beverage and his voluntary intoxication which was the proximate cause of the injury suffered by Leimkuehler and not the supplying of such beverage to Iman by Myers. For that reason the petition did not state a cause of action against Myers on common law principles.

Nor did the petition state a cause of action against Myers under § 311.310, RSMo 1986, because Harriman held that such section does not give rise to a civil cause of action against non-business dispensers. Myers was a non-business dispenser because he did not have a license to sell liquor by the drink. Harriman stated that legislative failure "to define and expound on the duties of nonbusiness dispensers under the Liquor Control Law is indicative of its intent that they not be held civilly liable under § 311.310." Id. at 223. Thus, Harriman held that any liability under § 311.310 would be limited to those licensed to sell intoxicating beverages. ¹ Therefore, there is no cause of action against Myers under § 311.310.

With reference to Johnson, the common law rule discussed above would shield her from liability for supplying the intoxicating beverages. Nor is she liable under § 311.310. Lambing v. Southland Corp., 739 S.W.2d 717, 719 (Mo. banc 1987). In Lambing, the court held that even if § 311.310 gave rise to a civil cause of action, such cause of action has been limited to tavern owners who dispense alcoholic beverages by the drink. Lambing stated that no case has extended liability to package liquor store owners, either under § 311.310, or on common law tort principles.

The petition failed to state a cause of action against Myers or Johnson under § 311.310 or on common law principles. The court correctly dismissed the petition.

The judgment is affirmed.

SHANGLER, J., concurs.

KENNEDY, J., concurs in separate concurring opinion.

KENNEDY, Judge, concurring.

It may be that the statute and the cases cited by the majority have erected around the negligent supplier...