London & Lancashire Indem. Co. of America v. Duryea

• Court: Supreme Court of Connecticut
• Writing for the Court: Before INGLIS; BALDWIN; In this opinion INGLIS; WYNNE
• Citation: 143 Conn. 53,119 A.2d 325
• Parties: The LONDON AND LANCASHIRE INDEMNITY COMPANY OF AMERICA v. Rose DURYEA et al. Supreme Court of Errors of Connecticut
• Decision Date: 13 December 1955

Page 325

119 A.2d 325 143 Conn. 53 The LONDON AND LANCASHIRE INDEMNITY COMPANY OF AMERICA
v.
Rose DURYEA et al. Supreme Court of Errors of Connecticut. Dec. 13, 1955.

[143 Conn. 54]

Page 326

Joseph V. Fay, Jr., Hartford, with whom were Francis J. McCarthy, Hartford, and, on the brief, Warren Maxwell, Hartford, for the appellant (plaintiff).

David Goldstein and Bernard Glazer, Bridgeport, with whom, on the brief, were Benjamin A. Markman, Hartford, and Frank Logue, Trumbull, for appellees (defendants Margaret E. [143 Conn. 55] Young et al.); with them, on the brief, was Walter D. Briggs, Middleton, in behalf of the appellee (named defendant).

Before [143 Conn. 53] INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

[143 Conn. 55] BALDWIN, Associate Justice.

The plaintiff issued to Rose Duryea an owners' and tenants' liability policy, effective May 5, 1952, to cover premises on Main Street in the town of Colchester which were used for a restaurant where intoxicating liquors were sold. The policy contained the following agreements: '1. Coverage A--Bodily Injury Liability. To pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law for damages * * * because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of such of the hazards hereinafter defined as are indicated by specific premium charge or charges. * * *' The hazards covered were defined as follows: 'Division 1. Premises--Operations. The ownership, maintenance or use, for the purposes stated in the Declarations, of the premises and all operations during the policy period which are necessary or incidental to such purposes.' The purposes of use stated in the declarations were: 'Restaurants--et al. Code 1318.' The specific premium charge in the declarations was for bodily injury liability.

On March 9, 1953, Margaret E. Young, individually and as administratrix of the estate of Clifford W. Young, and Margaret S. Young, executrix of the estate of Clifford E. Young, brought an action against Rose Duryea to recover damages for bodily injuries sustained by Margaret E. Young and for the deaths of Clifford E. Young and Clifford W. Young. They alleged that the injuries and deaths [143 Conn. 56] resulted from a collision, on October 19, 1952, between automobiles operated by the decedent Clifford E. Young and Ralph Bennett, which was caused by the acts of Rose Duryea, or of her agents, servants or employees, in serving intoxicating beverages to Bennett when she, or they, knew or should have known that he was intoxicated.

The plaintiff brought the present action for a judgment declaring that the cause of action alleged in the complaint in the Young suit, described in the preceding paragraph, is not within the coverage of the insurance policy issued by the plaintiff to Rose Duryea. The defendants in the present action are Rose Duryea, who is the plaintiff's insured, and the plaintiffs in the Young suit, that is, Margaret E. Young, individually and as administratrix, and Margaret S. Young, executrix. The instant case was presented by the parties and tried by the court upon the theory that the complaint in the Young suit stated a cause of action under § 4307 of the General Statutes. ¹ Whether it does allege a

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good cause of action and whether the statute is a valid exercise of legislative power we are not required to decide, for we shall consider the present case upon the same theory as the trial court. Maltbie, Conn.App.Proc., p. 32.

Section 4307 was enacted in 1933 following the repeal of the eighteenth (prohibition) amendment to the federal constitution. ² Cum.Sup.1935, § 1088c. [143 Conn. 57] It is designed to establish a cause of action against the seller of intoxicating liquor upon proof of three essentials: (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another. It differs fundamentally from its predecessor, § 2815 of the Revision of 1918, ³ which became obsolete when the eighteenth amendment to the federal constitution went into effect in 1920. See Ref. Table, Rev.1930, p. xvi. To establish a cause of action under § 2815, it was essential to prove a sale of intoxicating liquor, to be drunk on the premises, to a person who thereby became intoxicated and, while intoxicated and in consequence of that condition, injured the person or property of another. In other words, under § 2815 liability was predicated upon proof of a causal connection between the sale of the intoxicating liquor and the injury. Under § 4307 it is not. Whether the...