McClure v. McIntosh

Decision Date11 April 1989
Docket NumberNo. 54391,54391
PartiesBilly McCLURE, et al., Plaintiffs/Appellants, v. Wilbert McINTOSH, et al., Defendants/Respondents.
CourtMissouri Court of Appeals

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 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 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, 113-14 (1986); Meany v. Newell, 367 N.W.2d 472, 474-75 (Minn.1985). See also, Williams v. United States Fidelity and Guaranty Co., 854 F.2d 106, 108-09 (5th Cir.1988) (applying Mississippi law).

We find Jefferson Arms was, at most, a social host and the trial court properly granted judgment notwithstanding the verdict on the theory of dram shop liability. The trial court ruled that no common law dram shop liability existed at the time of Richard McClure's death and, therefore, Jefferson Arms was not liable for his death. The court relied on Spotts v. City of Kansas City, 728 S.W.2d 242 (Mo.App.1987), which held that dram shop liability established in Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983), would not be given retrospective effect. The trial court did not comment on the holdings in Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.App.1981) or Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.App.1981), which were decided prior to the date of Richard McClure's death. We find that irrespective of the holdings in these cases, which dealt with liability of dram shops, Jefferson Arms did not sell alcoholic beverages to McIntosh for profit. As a social host Jefferson Arms was not liable for Richard McClure's death. We affirm an order for judgment notwithstanding the verdict if the ruling was proper for any reason, even if the grounds assigned were wrong. Arthur v. Jablonow, 665 S.W.2d 364, 365 (Mo.App.1984). Point denied.

The second claim relates to plaintiffs' agency theory. It asserts the trial court erred in excluding the testimony of decedent's brother, William McClure. The McClures offered the testimony of William McClure regarding statements made to him after the fact by Susan Moffit, building manager of Jefferson Arms at the time of the casualty. The court prohibited this testimony after finding the McClures had not disclosed the witness, thus violating a discovery request for statements made by any agent or employee of Jefferson Arms. The court acted within its discretion in excluding the testimony.

William McClure went to Jefferson Arms after Richard McClure was killed in an attempt to determine what had happened to his brother. He testified that when he went to Jefferson Arms and asked to speak with McIntosh, "[a] lady came out to me and said that he [McIntosh] wasn't available, that she could help me and her name was Mickey [the building manager]." He testified he then asked her if she knew what happened the night his brother died. Counsel for Jefferson Arms objected at this point, stating that Jefferson Arms submitted interrogatories to the McClures requesting any statements made by any agents or employees of Jefferson Arms about the incident, and that the McClures had denied having any such statements. Counsel for the McClures informed the court that if allowed to testify, William McClure would state the...

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