McKinney v. Foster

• Decision Date: 08 January 1958
• Citation: 391 Pa. 221,137 A.2d 502
• Parties: Charles C. McKINNEY, Jr., Administrator of the Estate of Charles C. McKinney, lll, Appellant, v. James W. FOSTER and Paul J. Besnecker, individually and trading as Besnecker's Restaurant, Appellee.
• Court: Pennsylvania Supreme Court

Page 502

137 A.2d 502

391 Pa. 221

Charles C. McKINNEY, Jr., Administrator of the Estate of Charles C. McKinney, lll, Appellant, v. James W. FOSTER and Paul J. Besnecker, individually and trading as Besnecker's Restaurant, Appellee.

Supreme Court of Pennsylvania.

Jan. 8, 1958.

Willis A. MacDonald, Butler, for appellant.

John L. Wilson, Butler, for appellee.

Before CHARLES ALVIN JONES, C. J., and CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES, and COHEN, JJ.

CHIDSEY. Justice.

This trespass action was brought by the administrator of the Estate of Charles C. McKinney, III against James W. Foster, the 19 year old operator of an automobile that crossed over the opposite lane of a highway striking and fatally injuring McKinney who was walking along the berm, and against Paul J. Besnecker, the proprietor of a restaurant at which Foster had been served beer on the evening of the accident. The jury made a special finding that Foster was under the influence of intoxicants at the time of the accident, and brought in verdicts amounting to $6,000 against both defendants.

Both defendants moved for a new trial, and the defendant Besnecker also moved for judgment n. o. v. The trial court granted the judgment n. o. v. as to the defendant Besnecker, refused the motions for new trial, and entered judgment in favor of the defendant Besnecker, and in favor of the plaintiff against the defendant Foster. The plaintiff brings this appeal from the entry of judgment n. o. v. in favor of Besnecker. The defendant Foster has not appealed.

The action against Besnecker was founded on the Act of May 8, 1854, P.L. 663 ¹ which provided:

'Section 3. That any person furnishing intoxicating drinks to any other person in violation of any existing law, or of the provisions of this acts, [sic] shall be held civilly responsible for any injury to person or property in consequence of such furnishing, and any one aggrieved may recover full damages against such person so furnishing by action on the case, instituted in any court having jurisdiction of such form of action in this Commonwealth.'

At the time of the accident it was, of course, illegal to sell intoxicants to a minor or to any person visibly intoxicated. ²

The action, filed in 1950, came on for trial in May, 1955 and the verdicts rendered on May 26, 1955. The opinion and order of the court below granting the judgment n. o. v. were filed on June 8, 1956, and although certiorari issued on September 12, 1956, this appeal was not heard until October 2, 1957.

We recite these dates to show that the judgment n. o. v. was entered, and this appeal taken, a year before our latest pronouncement on the Act of 1854 in the case of Manning v. Yokas, 389 Pa. 136, 132 A.2d 198, handed down on May 29, 1957.

Manning v. Yokas was significant because, while many cases arising under the Act of 1854 had been heard by this Court during the past hundred years, Manning v. Yokas was the first to apply the Act to a situation where an accident occurred and the negligent driver of an automobile involved had been served intoxicants by the defendant sought to be held liable. In that case, like this, a minor had been served intoxicants at the defendant Yokas' hotel and afterward, while driving away from the hotel, the minor negligently drove across the center line into the opposite lane of a highway, crashing into the plaintiffs' car. The court below similarly granted judgment n. o. v. as to the hotel proprietor, and on appeal we reversed. The tenor of our opinion made clear that an accident which occurred following the furnishing of intoxicants to the negligent driver, could properly be found by a jury to have resulted 'in consequence of such furnishing', and that the responsible tavern keeper could be held civilly liable under the Act of 1854. Clearly implicit in that opinion is the common knowledge that great numbers of persons, minors as well as adults, drive automobiles (too many of them, unfortunately, while intoxicated), and that it was well within the realm of foreseeability that one illegally served with intoxicants might negligently drive an automobile and cause injury to persons or property.

Without the benefit of the Manning v. Yokas opinion, the trial court in the instant case opined:

'The injury must be the natural and probable consequence of the negligence--such a consequence as under the surrounding circumstances in the case might or ought to have been foreseen by the wrongdoer as likely to follow through his act: * * * There is no evidence whatsoever that Foster showed any signs of intoxication while in the Besnecker Restaurant. There is not the slightest evidence that Besnecker knew that Foster owned an automobile, or had a motor vehicle which he would be likely to drive. After careful consideration of all of the evidence we are of the opinion that it could not be reasonably anticipated or foreseen when the sale of the beer took place that Foster would become intoxicated, drive an automobile, and become involved in a fatal accident more than an hour later and six miles away from the premises. To hold otherwise would, in effect, make the restaurant keeper an insurer against all accidents which might happen subsequent to the sale of the intoxicating beverage. It, therefore, appears that the accident is too remote from the alleged illegal act to cause civil responsibility to arise.'

It is clear from the above portion of the trial court's opinion, that the reasons for which it granted judgment n. o. v. were reasons which we found insufficient in Manning v. Yokas, supra. Factually this case is almost indistinguishable from Manning v. Yokas. A minor was served intoxicants in violation of the Pennsylvania alcoholic beverage laws, and while intoxicated drove his automobile negligently, causing an accident. In the Manning case, it is true, the time between the minor's departure from the hotel until the accident, was only a short time it took to go nine blocks; while in the instant case (considering the evidence in the light most favorable to the plaintiff, which we must do upon motion for judgment n. o. v.) the accident took place about an hour and a half after the minor had his last drink at the restaurant. This time difference does not make the cases distinguishable. It is common knowledge that one often has much less control over his faculties in the hours following alcoholic imbibing than at the time the drinks are actually consumed. It takes some time before the alcohol 'hits'. It certainly cannot be said as a matter of law that as to an accident which is found to have been caused by the intoxication of a driver, a jury could not find that the intoxication resulted from drinks taken one or two hours before the collision.

In oral argument to this Court and in his brief, appellee has tried to take this case out of the Manning v. Yokas ruling, arguing that in that case we did not consider whether the serving of the minor had been a wilful violation in terms of Section 1 of the Act of May 8, 1854, supra, which reads:

'That wilfully furnishing intoxicating drinks by sale, gift or otherwise to any person of known intemperate habits, to a minor, or to an insane person for use as a beverage shall be held and deemed a misdemeanor, and upon conviction thereof the offender shall be fined not less than ten nor more than fifty dollars, and undergo an imprisonment of not less than ten nor more than sixty days, and the wilful furnishing of intoxicating drinks as a beverage to any person when drunk or intoxicated shall be deemed a misdemeanor punishable as aforesaid.'

This contention is based on the view that the violation which is a prerequisite to civil liability under Section 3 of the Act of 1854, must necessarily be a violation of the aforestated Section 1. This is not the case, as a reading of the Act will make obvious. Section 3 clearly states: 'That any person furnishing intoxicating drinks to any other person in violation of any existing law, or of the provisions of this acts [sic], shall be held civilly responsible * * *'

At the time the violation in the instant case took place, the Act of November 29, 1933, P.L. 15 (Special Session, 1933-34), as amended, was still in effect. ³ Section 602(e) as amended by Section 602(5) of the Act of June 16, 1937, P.L. 1762, stated:

'[(e)] (5) It shall be unlawful for any licensee, or the board, or any employe, servant or agent of such licensee or of the board, to sell, furnish, or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished, or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards or persons of known intemperate habits.'

This very section of the Act of 1933, as amended, was construed in Commonwealth v.Borek, 161 Pa.Super. 200, 54 A.2d 101 (allocatur refused). The defendant argued that a licensee charged with selling intoxicating liquor to a minor may defend on the ground that it was not furnished to the minor either knowingly or negligently. ⁴ The Superior Court rejected the contention, stating, 161 Pa.Super. at page 202, 54 A.2d at page 102:

'* * * This is a rather ingenious argument; but that the legislature intended the mere fact of selling intoxicating liquor or beverage to a minor to constitute an offense irrespective of intention or good faith, is in our opinion clearly apparent upon a review of its subsequent legislation on the subject.' ⁵

The phrase 'of any existing law' in the context of the Act of 1854 in our opinion refers to any law existing at the time this section of the Act is invoked, and not to laws existing in 1854, at the time of the enactment. Section 3 obviously intended to permit a civil recovery to persons injured as a result of the unlawful furnishing of intoxicating drinks, in addition to whatever criminal penalties might be imposed therefor. The terms of the Act contemplate that statutory...