Maples v. Chinese Palace, Inc.

• Decision Date: 29 August 1980
• Citation: 389 So.2d 120
• Parties: Margie MAPLES v. The CHINESE PALACE, INC., et al. 78-662.
• Court: Alabama Supreme Court

Page 120

389 So.2d 120

Margie MAPLES v. The CHINESE PALACE, INC., et al.

78-662.

Supreme Court of Alabama.

Aug. 29, 1980.

Theodore L. Hall, Mobile, for appellant.

Donald M. Briskman, Mobile, for the Chinese Palace, Inc.

Patricia K. Olney and Victor T. Hudson, of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, Mobile, for the Met, Inc.

On Rehearing

PER CURIAM.

The original opinion is withdrawn and this opinion is substituted for it.

This is an appeal from the dismissal, with prejudice under Rule 12(b)(6), ARCP, of a complaint of ten counts, filed by Margie Maples, the mother of Martha Brannon, a deceased minor, against the Chinese Palace, Blood Brothers, Inc., and Metropolitan Restaurant and Club, Inc., for damages arising from the allegedly unlawful sale of intoxicating liquors by the defendants to Martha Brannon.

In Counts One through Four the plaintiff sues as next friend of Martha Brannon, a deceased minor.

Count One is based on the death of Martha Brannon as a proximate result of the unlawful sale of intoxicating liquors to the minor.

Count Two is for the death of Martha Brannon as a proximate result of the unlawful sale of intoxicating liquors to her when she was intoxicated.

Count Three is for severe physical and mental anguish suffered by Martha Brannon as a proximate result of the unlawful sale of intoxicating liquors to the minor.

Count Four is for severe physical pain and mental anguish suffered by Martha Brannon as a proximate result of the unlawful sale of intoxicating liquors to her when she was intoxicated.

In Counts Five through Ten the mother of the deceased minor sues individually. She sues, in Count Five, for the death of her minor daughter as a proximate result of the unlawful sale of intoxicating liquors to the minor.

She sues in Count Six for the death of her minor daughter as a proximate result of the unlawful sale of intoxicating liquors to Martha Brannon when she was intoxicated.

Margie Maples in Count Seven sues for the severe physical pain and mental anguish suffered by her minor daughter as a proximate result of the unlawful sale of intoxicating liquors to her.

She sues in Count Eight for severe physical pain and mental anguish suffered by Martha Brannon as a proximate result of the unlawful sale of intoxicating liquors to her when she was intoxicated.

Count Nine is as follows:

COUNT NINE

1. The Plaintiff is the mother of MARTHA BRANNON, deceased, who was a minor at the time of her death on or about the 28th day of January, 1978.

2. Plaintiff realleges and readopts Paragraphs 2-5 of Count One as though fully set out herein. (These paragraphs name the defendants.)

3. On or about the 28th day of January, 1978, Defendants unlawfully sold or otherwise furnished alcoholic beverages or other intoxicating liquors or beverages to the deceased, Martha Brannon, a minor, who was then and there a customer or business invitee of the Defendants at their places of business in Mobile County, Alabama. The Defendants knew or should have known or could have ascertained through the exercise of proper and reasonable care that Martha Brannon, deceased, was in fact a minor.

4. As a direct and proximate result of the Defendants' said negligent and unlawful acts, Martha Brannon, a minor was struck by an automobile on University Boulevard, causing her to suffer serious physical injuries which resulted in her death.

7. As a direct and proximate result of these injuries the Plaintiff, Margie Maples, was caused to incur the following damages: Plaintiff was caused to incur numerous medical expenses; Plaintiff was caused to lose the services of her minor daughter; Plaintiff was caused to incur funeral expenses for the burial of her minor daughter.

WHEREFORE, Plaintiff demands Judgment against the Defendants in the sum of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) plus Costs.

Count Ten is as follows:

COUNT TEN

1. The Plaintiff is the mother of MARTHA BRANNON, deceased, who was a minor at the time of her death on or about the 28th day of January, 1978.

2. Plaintiffs reallege and readopt Paragraphs 2-5 of Count One as though fully set out herein.

3. On or about the 28th day of January, 1978, Defendants sold or otherwise furnished alcoholic beverages or other intoxicating liquors or beverages to the deceased, Martha Brannon, a minor, who was then a customer or business invitee of the Defendants at their places of business in the County of Mobile, Alabama.

4. The Defendants sold or otherwise furnished alcoholic beverages or other intoxicating liquors to the deceased, Martha Brannon, a minor, in violation of state law, for that said alcoholic beverages or other intoxicating liquors were sold or furnished to the deceased, Martha Brannon, a minor, when the said Martha Brannon was intoxicated. The Defendants knew or should have known or could have ascertained with the exercise of proper, reasonable discretion that Martha Brannon, deceased, was in fact intoxicated at the time said beverages were sold to her.

5. As a direct and proximate result of the Defendants' negligent, unlawful sale of alcoholic beverages or other intoxicating liquors or beverages to the deceased, Martha Brannon, a minor, was struck by an automobile causing her to suffer serious physical injuries which resulted in her death.

6. As a direct and proximate result of said injuries and death, the Plaintiff, Margie Maples, was caused to suffer the following damages: Plaintiff was caused to incur numerous medical expenses; Plaintiff was caused to lose the services of her minor daughter; Plaintiff was caused to incur funeral expenses for the burial of her minor daughter.

WHEREFORE, Plaintiff demands Judgment against the Defendants in the sum of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) plus Costs.

The defendants filed motions to dismiss the complaint and each count thereof on the ground that it failed to state a claim upon which relief could be granted. The trial court granted the motions.

We hold that Counts One through Eight were properly dismissed; and Counts Nine and Ten should not have been dismissed.

This Court follows the rule "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Hamilton v. South Central Bell Telephone Company, 369 So.2d 16 (Ala.1979); Dunson v. Friedlander, 369 So.2d 792 (Ala.1979).

The appellant's contention is that her complaint stated a claim under § 6-5-391, Code 1975, known as the Minor's Homicide Act; § 6-5-70, Code 1975, known as the Civil Damage Act; and § 6-5-71, Code 1975, known as the Dram Shop Act.

Section 6-5-70, Code 1975, known as the Civil Damage Act is as follows:

Furnishing liquor to minors. Either parent of a minor, guardian or a person standing in loco parentis to the minor having neither father nor mother shall have a right of action against any person who unlawfully sells or furnishes spirituous liquors to such minor and may recover such damages as the jury may assess, provided the person selling or furnishing liquor to the minor had knowledge of such minority. Only one action may be commenced for each offense under this section.

Section 6-5-71, Code 1975, known as the Dram Shop Act, is as follows:

Right of action of wife, child, parent or other person for injury in consequence of illegal sale or disposition of liquor or beverages.

(a) Every wife, child, parent or other person who shall be injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages.

(b) Upon the death of any party, the action or right of action will survive to or against his executor or administrator.

(c) The party injured, or his legal representative, may commence a joint or separate action, against the person intoxicated or the person who furnished the liquor, and all such claims shall be by civil action in any court having jurisdiction thereof.

When a person sues as next friend of a minor, the minor is the real party to the suit; his rights are those litigated, and recovery belongs to him. Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 332, 110 So. 566, 569 (1925). See also Johnson v. Pugh, 239 Ala. 12, 193 So. 317 (1940); Citizens Walgreen Drug Agency, Inc. v. Perry's Pride, Inc., 348 So.2d 1038, 1040 (Ala.1977).

Rule 17(c), ARCP, contains among others, the following provision:

If an infant or incompetent person does not have a duly appointed representative, he may sue by his next friend.

Martha Brannon is dead. Therefore, Counts One through Four were defective.

Counts Five and Six were properly dismissed because they were based on the wrongful death of minor statute, § 6-5-391, Code 1975. Wrongful death statutes apply only when the decedent could have maintained an action for the wrongful act, omission or negligence if it had not caused death. Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973). Harris v. A. J. Spencer Lumber Co., 185 Ala. 648, 64 So. 557 (1914); Harris v. McNamara, 97 Ala. 181, 12 So. 103 (1892). Martha Brannon could not have maintained an action for common law negligence against the defendants for the distribution of intoxicating liquors. DeLoach v. Mayer Electric Supply Co., 378 So.2d 733 (Ala.1979); King v. Henkie, 80 Ala. 505 (1886). Therefore, her mother cannot maintain an action under § 6-5-391.

A minor has no right of action under § 6-5-70, Code 1975. That section gives a right of action only to the parent, guardian or person standing in loco parentis to a minor having neither father nor moth...