Manning v. Andy

• Decision Date: 10 October 1973
• Citation: 310 A.2d 75,454 Pa. 237
• Parties: Clair MANNING, Appellant, v. John ANDY and Frank Andy, Individually and Trading as J & F Rubber Company and Andy's Tire Service, Appellees.
• Court: Pennsylvania Supreme Court

Page 75

310 A.2d 75

454 Pa. 237

Clair MANNING, Appellant, v. John ANDY and Frank Andy, Individually and Trading as J & F

Rubber Company and Andy's Tire Service, Appellees.

Supreme Court of Pennsylvania.

Oct. 10, 1973.

[454 Pa. 238] Sanford S. Finder, Washington, for appellant.

Samuel L. Rogers, Washington, for appellees.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX, and MANDERINO, JJ.

OPINION OF THE COURT

PER CURIAM:

Clair Manning has appealed from an order of the trial court dismissing his complaint in trespass for failure to state a cause of action in negligence. The dismissal occurred following preliminary objections by appellees, John Andy and Frank Andy, individually and trading as J & F Rubber Company and Andy's Tire Service. On appeal the Superior Court sustained the trial court by a per curiam order. We granted allocatur.

The complaint alleged that appellant sustained injuries in an automobile accident caused by Russell E. Walters, who was under the influence of liquor. Appellant was a passenger in Walter's vehicle when the accident occurred. Both appellant and Walters were employees of appellees, who had earlier held a party for their employees. Appellant further alleged that:

'At said party the (appellees) did furnish or supply intoxicating liquors or beverages which were consumed by the said Russell E. Walters as well as (the appellant) and did continue to furnish intoxicating liquors or beverages to the said Russell E. Walters when he was in a state of visible intoxication.'

In dismissing the complaint, the trial court held that no cause of action was stated under any theory and specifically held that § 493(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, Art. IV, § 493(1), as amended, 47 P.S. 4--493(1), which defines certain unlawful conduct, does not impose civil liability upon appellees. ¹ Section 493(1) of the Liquor Code does impose criminal liability for certain unlawful conduct and reads as follows:

'It shall be unlawful . . . for any licensee or the board, or any employe, servant or agent of such licensee or the board, or any other person, to sell, furnish or give any liquor . . . or to permit any liquor . . . to be sold, furnished or given, to any person visibly intoxicated. . . .'

We find no error in the trial court's dismissal of appellant's complaint. Only licensed persons engaged in the Sale of intoxicants have been held to be civilly liable to injured parties. Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 198 A.2d 550 (1964). Appellant asks us to impose civil liability on nonlicensed persons like appellees, who furnish intoxicants for no remuneration. We decline to do so. While appellant's proposal may have merit, we feel that a decision of this monumental nature is best left to the legislature.

Order affirmed.

POMEROY, J., filed a concurring opinion.

MANDERINO, J., filed a dissenting opinion in which ROBERTS, J., joins.

POMEROY, Justice (concurring).

I concur in the result reached by the Court, but since my views do not coincide completely with those of the majority, I deem it desirable to set them forth briefly.

Were the defendant appellee in this case a licensee under the Liquor Code and had he sold the drinks rather than given them away to a person visibly intoxicated, there is little doubt that we would conclude that a cause of action had been stated; such conduct, in clear violation of the provisions of Section 493 of the Liquor Code, ¹ would be considered negligence Per se in a civil suit, even though the statute is penal in nature. Our cases make this plain. See Majors v. Brodhead Hotel, 416 Pa. 265, 268, 205 A.2d 873, 875, 876 (1965); Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 632, 198 A.2d 550, 553 (1964); Smith v. Clark, 411 Pa. 142, 144--145, 190 A.2d 441, 442 (1963); Schelin v. Goldberg, 188 Pa.Super. 341, 347, 146 A.2d 648, 651--652 (1958).

The defendant, however, is not a licensee but a private person who played host at a party. The question, therefore, is whether such a person is subject to the interdiction of Section 493, either for purposes of criminal responsibility under the Liquor Code or in a civil suit for damages. More specifically, do the words 'any other person' in that section refer to everyone in the Commonwealth or only to persons who, although not licensees or their employees or agents, are nevertheless persons in the liquor trade? The question has never been previously decided by this Court, although the Superior Court has held that the statute does attach Criminal responsibility to the forbidden conduct even though the defendant was not connected with the liquor business. Commonwealth v. Randall, 183 Pa.Super. 603, 133 A.2d 276 (1957). ² One need not quarrel with the Randall decision on its facts (the conduct there involved also included corrupting the morals of minors) to conclude that it need not be held applicable in Civil suit.

The Liquor Code is primarily concerned with the regulation of licensees of the Liquor Control Board and others connected in one way or another with the liquor industry. ³ In my view it is appropriate to hold persons in that class strictly liable in tort law for a violation of the statute, as this Court has done in the cases cited above. See Restatement (Second) of Torts, § 286 (1965). That standard of liability, however, is obviously not appropriate for every violation of a criminal statute, ⁴ and in my view it is not appropriate where, as here, the defendant is a private individual in no way part of the liquor industry. To my knowledge, no court has created civil liability with respect to such persons. See Annot., 8 A.L.R.3d 1412.

I hasten to add that in my view there is no reason in the nature of things why a private person should not be held liable if he serves liquor to one whom he knows or should know to be intoxicated, and who he knows or should know is about to drive an automobile or engage in some other activity involving the potentiality of harm to himself or to others, with resulting damage. No legislative enactment is required to accomplish that result; it is ordinary tort law. ⁵ The present complaint, however, is not so framed; it is deliberately couched in the statutory langauge of the Liquor Code without alleging any such scienter on appellee's part. That being so, I think the demurrer to the amended complaint was properly sustained.

MANDERINO, Justice (dissenting).

I must dissent. The majority establishes a new immunity in tort law previously unheard of in the decisions of this Court. Ironically, the pronouncement of this new immunity takes place at a time when most courts, including this one, have been most diligent in striking down old immunities which deprived citizens of their day in court.

Liquor dispensers who act negligently and cause harm should not be given any special privilege of immunity from liability. We do not give such immunity to automobile drivers. We do not give such immunity to drug dispensers. We do not give such immunity to homeowners. Once these was a special immunity for charities--but no longer. Once there was a special immunity for municipalities--but no longer. Once there was a special immunity for parents--but no longer. The creation of a new class and the establishment of a new immunity makes history--bad history. The combination of an intoxicated person and an automobile causes death and serious harm to many each day. Such victims are entitled to their day in court. That day in court is guaranteed by the declaration of rights in the Pennsylvania Constitution which states that '. . . every man for any injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.' Pa.Const. art. 1, § 11, P.S.

This case is at an early stage. The appellant has alleged that he was harmed by the negligent conduct of the appellees. He is entitled to an opportunity to prove his allegations according to ancient principles of tort law. We have no right to deprive him of that opportunity.

The trial court erred in reasoning that a trespass action in negligence must state a cause of action Under a statute. The courts may--or may not--look to a statute for a controlling or guiding standard of due care to be applied in a negligence action. See Restatement (Second) of Torts § 286 (1965).

Indeed, in Pennsylvania, the overwhelming number of trespass actions in negligence are unrelated to any statute.

Simply stated, negligent conduct is the want of due care which a reasonable man would exercise under the circumstances. Gift v. Palmer, 392 Pa. 628, 141 A.2d 408 (1958). See Restatement (Second) of Torts §§ 282--83 (1965). If such negligent conduct is the legal cause of harm, a cause of action is stated. See Restatement (Second) of Torts § 430 (1965). See also Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970); Restatement (Second) of Torts §§ 431--32 (1965). A demurrer can only be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The factual allegations in the complaint must be examined to determine whether reasonable men might infer a lack of due care by the appellees which legally caused harm to the appellant.

It is alleged that the appellees furnished or supplied intoxicating liquors or beverages to Walters and continued to furnish such intoxicating liquors or beverages to Walters when he was in a state of visible intoxication. Might not reasonable men infer that there was a want of due care which the appellees should have exercised under the circumstances? Can we declare as a matter of law that it is reasonable conduct (due care) to serve intoxicating liquors to a person who is in a state of visible intoxication? I think the question answers itself. In acting, a person is assumed to know what the reasonable...