McClure v. McIntosh, 54391

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: KAROHL; GRIMM, P.J., and GARY M. GAERTNER
• Citation: 770 S.W.2d 406
• Parties: Billy McCLURE, et al., Plaintiffs/Appellants, v. Wilbert McINTOSH, et al., Defendants/Respondents.
• Docket Number: No. 54391,54391
• Decision Date: 11 April 1989

Page 406

770 S.W.2d 406 Billy McCLURE, et al., Plaintiffs/Appellants,
v.
Wilbert McINTOSH, et al., Defendants/Respondents. No. 54391. Missouri Court of Appeals,
Eastern District,
Division Two. April 11, 1989.
Motion for Rehearing and/or Transfer to Supreme Court
Denied May 9, 1989.
Application to Transfer Denied June 13, 1989.

Martin, Bahn, Malec and Cervantes, Leonard P. Cervantes, St. Louis, for plaintiffs/appellants.

Brown, James & Rabbitt, P.C., Daniel T. Rabbitt, T. Michael Ward, St. Louis, for defendants/respondents.

KAROHL, Judge.

Plaintiffs, Billy and Effie McClure, appeal from orders in favor of Jefferson Arms Corporation granting directed verdict on Count I which was tried on the theory of agency liability and judgment notwithstanding the verdict on Count II which was submitted on the theory of dram shop liability. Richard McClure, the son of Billy and Effie McClure, was killed when struck by an automobile driven by Wilbert McIntosh,

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an employee of Jefferson Arms. The McClures filed a wrongful death suit against Jefferson Arms and Wilbert McIntosh. A jury returned a verdict against both defendants for $1,000,000. McIntosh did not appeal the judgment against him. The McClures claim the trial court erred in: (1) granting judgment notwithstanding the verdict; (2) excluding the testimony of William McClure, brother of decedent; and, (3) granting the directed verdict on the agency theory. We affirm.

On October 9, 1982, Richard McClure was struck and killed by an automobile driven by Wilbert McIntosh. McIntosh was employed as a maintenance worker by Jefferson Arms. Jefferson Arms is an apartment complex located in downtown St. Louis. On the date of the casualty, McIntosh attended a party permitted or sponsored by Jefferson Arms for employees who installed new boilers at the complex. It was a party to celebrate completion of the work.

The party was held in the basement of Jefferson Arms. The complex operates a lounge. An employee of Jefferson Arms set up a portable bar for the party using liquor from the lounge's storeroom. There was a dispute as to whether Jefferson Arms paid for the alcoholic beverages or if the liquor was paid for through money in an employees' fund. It was undisputed, however, that Jefferson Arms did not charge the employees for alcoholic drinks and generated no financial profit from the party.

McIntosh attended the party for several hours. He consumed several beers while at the party. It is unclear the exact number of beers McIntosh consumed, but several witnesses testified McIntosh fell asleep on a couch during the party. The party ended sometime between 10:00 and 10:30 p.m. After the party, McIntosh and another hotel employee who had also attended the party, Joy Pennebaker, went to a nearby bar and continued drinking. Pennebaker claimed he and McIntosh drank another two or three beers at the bar. McIntosh and Pennebaker left the bar at approximately 11:45 p.m. Pennebaker, who lived in Illinois, needed a ride home and McIntosh agreed to take him home. McIntosh was on Interstate 70 driving Pennebaker home when his car went off the highway onto a pedestrian walkway, struck and killed Richard McClure.

The McClures first claim is there was sufficient evidence to support a claim of dram shop liability against Jefferson Arms and the trial court erred in granting judgment notwithstanding the verdict. The McClures argue that under § 311.310 RSMo 1978, in effect at the time of Richard McClure's death, Jefferson Arms is liable for serving the alcoholic drinks to McIntosh at the party. The statute provided it was a misdemeanor for a liquor licensee to "sell, vend, give away or otherwise supply any intoxicating liquor in any quantity whatsoever to ... any person intoxicated or appearing to be in a state of intoxication...." Section 311.310 RSMo 1978. ¹ The McClures claim Jefferson Arms had a common law duty or a duty because of this statute not to furnish alcoholic beverages to McIntosh.

The common law in Missouri after 1981, but prior to enactment of § 537.053 RSMo 1986, ² held a tavern owner may be liable for serving alcoholic beverages to an intoxicated person or to a minor who subsequently

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struck and killed another. See, Carver v. Schafer, 647 S.W.2d 570, 572-75 (Mo.App.1983); Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519, 520 (Mo.App.1981); Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333, 335-37 (Mo.App.1981). However, liability for injuries caused by intoxicated drivers was never extended to social hosts. See, e.g., Childress v. Sams, 736 S.W.2d 48, 49-50 (Mo. banc 1987); Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547, 553 (Mo. banc 1987) (relying on Harriman v. Smith, 697 S.W.2d 219 (Mo.App.1985)).

In both Childress, 736 S.W.2d 48, and Andres, 730 S.W.2d 547, the injuries occurred prior to the enactment of § 537.053 RSMo 1986. The Supreme Court refused to extend common law liability for injuries cause by intoxicated persons to social hosts. Here, Jefferson Arms did not sell alcoholic drinks to its employees and was, at most, a social host. Jefferson Arms had no intent to profit from the party. It derived no financial benefit from the party, and had no incentive to encourage employees to drink excessively. Jefferson Arms sponsored a party to reward its employees for completing an extensive and costly maintenance job. No commercial motive is evident. McIntosh attended the party voluntarily and not in the course of his employment duties. Even though Jefferson Arms is licensed to sell alcoholic beverages, it provided free drinks for its employees at the party. The beverages were furnished by a social host not a dram shop keeper.

Public policy in Missouri is that it is the consumption and not the furnishing of alcoholic beverages that is the proximate cause of injuries inflicted by intoxicated persons. Section 537.053.1 RSMo 1986. See also, Spotts v. City of Kansas City, 728 S.W.2d 242, 249-50 (Mo.App.1987). The Supreme Court of Missouri in Andres, 730 S.W.2d at 553, adopted the reasoning of Harriman v. Smith, 697 S.W.2d 219 (Mo.App.1985), and found that imposing liability upon social hosts would have a substantial impact upon everyday family and social affairs. Andres, 730 S.W.2d at 553. In Childress, 736 S.W.2d at 49-50, the court found that charging a minimal fee for drinks, but not a fee motivated by intent to generate a profit, did not destroy defendant's role as a social host and therefore did not create liability. Id.

We have found no Missouri cases contemplating liability of an employer for acts of an employee who becomes intoxicated at a company sponsored party. However, several other states which, like Missouri, have no social host liability, have held there is no cause of action against employers for casualties involving employees leaving company sponsored parties. See, e.g., Thompson v. Trickle, 114 Ill.App.3d 930, 70 Ill.Dec. 563, 564-65, 449 N.E.2d 910, 911-12 (1983); Kuykendall v. Top Notch Laminates, Inc., 70 Md.App. 244, 520 A.2d 1115, 1117-18 (1987); Whittaker v. Jet-Way, Inc., 152 Mich.App. 795, 394 N.W.2d 111,...