Mitchell v. Ketner

• Decision Date: 18 December 1964
• Citation: 393 S.W.2d 755,54 Tenn.App. 656
• Parties: Mary Lou MITCHELL and Husband v. Ray KETNER, Administrator. Mary Lou MITCHELL and Husband v. Burl M. HICKMAN, Administrator. 54 Tenn.App. 656, 393 S.W.2d 755
• Court: Tennessee Court of Appeals

Page 755

393 S.W.2d 755

Mary Lou MITCHELL and Husband v. Ray KETNER, Administrator.

Mary Lou MITCHELL and Husband v. Burl M. HICKMAN, Administrator.

54 Tenn.App. 656, 393 S.W.2d 755

Court of Appeals of Tennessee, Eastern Section.

Dec. 18, 1964.

Certiorari Denied by Supreme Court July 6, 1965.

[54 TENNAPP 657]

Edward F. Hurd, Newport, and Franklin Park, Jefferson City, for plaintiffs in error.

Rainwater & Rainwater and Joe H. Felknor, Dandridge, for defendants in error.

[54 TENNAPP 658] McAMIS, Presiding Judge.

Carolyn N. Woolard and Frances L. Hickman died as the result of injuries sustained when the automobile in which they were passengers collided with an automobile owned by James Sturgill and operated by Claude Wallen.

The present actions were instituted by the respective administrators against Mary Lou and James Mitchell, owners and operators of the Southland Tavern, where it is charged Sturgill and Wallen, along with four other companions, prior to the collision, purchased beer and became intoxicated. The gravamen of the actions is the alleged violation of the statutes making it unlawful to sell beer on Sunday or to a minor and upon common law negligence in selling beer to the occupants of the Sturgill car under such circumstances that defendants knew or should have known that they were intoxicated or about to become so and as a result of such intoxication would become a menace to travelers upon public highways.

The two cases were tried together, resulting in a verdict in favor of Hickman, Administrator, for $30,000.00 and a verdict for $25,000.00 in favor of Ketner, Administrator. Both defendants moved for a new trial in each case and upon the overruling of their motions prayed and were granted appeals to this Court. We consider first the assignment that the Court erred in not granting a new trial on the ground there was no evidence to support the verdict.

On Sunday, September 22, 1960, the day of this tragedy, James Sturgill, aged 19, drove his car from Kingsport, Tennessee, to the home of Claude Wallen at Blackwater, Virginia. Wallen who was killed in the accident was 29 years of age. Wallen and Sturgill, along with four male companions ranging in age from 16 to 22, left Blackwater [54 TENNAPP 659] about 1 P.M., drove through Rogersville and Morristown, Tennessee, to the Southland Tavern, owned by defendants, located near Newport, Tennessee.

Sturgill, the owner of the car, who was driving parked in front of the Tavern at about 3 P.M. Wallen and Clarence Tankersley, who was 22 years of age, got out of the car and entered the Tavern and Wallen purchased two cases of beer containing 24 cans each which he loaded in the car unopened. Sturgill then drove to a lake near Morristown where within about one hour one case of beer and possibly a few cans out of the other were consumed by the six occupants of the car. They then decided to return to the Tavern but all the proof shows that Wallen was drinking less than the others and that on the return trip to the Tavern he drove the car and parked it in front of the Tavern where he alone got out and entered the Tavern, returning to the door a few minutes later accompanied by the Tavern attendant, thus affording the attendant, according to plaintiffs' insistence, an opportunity to observe the condition of the other occupants of the car.

The party then left with the beer unopened with Wallen driving. After leaving the tavern the second time and before the accident more of the beer was consumed. At that time, according to one of the occupants, they were all 'pretty high'. The car met and collided on the wrong side of the road after dark with the car occupied by the two intestates.

There is no proof that Wallen, the driver, was visibly intoxicated when he made the second purchase of beer, although, as above shown, he apparently became so before the accident occurred. Nor is there any proof that any [54 TENNAPP 660] of the beer on either occasion was consumed on defendants' premises.

In our opinion, defendants would have been entitled to a directed verdict on the counts of the declarations charging negligence per se in the sale of beer to a minor contrary to the provisions of T.C.A. 57-221, if the motion for directed verdicts had been renewed at the close of all the evidence. As we have seen, both sales were to Wallen who was 29 years of age. There was no sale to any of his minor companions.

Our cases, without exception, hold that failure to renew a motion for directed verdict at the close of all the evidence operates as a waiver of the motion. City of Knoxville v. Hargis, 184 Tenn. 262, 198 S.W.2d 555; Sadler v. Draper, 46 Tenn.App. 1, 326 S.W.2d 148. Numerous other cases could be cited for the rule.

We are also of opinion plaintiffs failed to show a nexus between the accident and violation of the provisions of T.C.A. 57-221 making it unlawful to sell beer on Sunday. The sale of an intoxicant on Sunday to the driver of an automobile is no more the proximate cause of an injury on the highway than if sold on some other day. There is nothing in this statute indicating a legislative intent to protect travelers on the highway from drunken driving on the Sabbath. The operation of a motor vehicle at any time while under the influence of an intoxicant is made a criminal offense by another statute, T.C.A. 59-1031.

The violation of a penal statute is negligence per se and will sustain an action for civil wrong, but only if it affirmatively appears that such violation was the proximate cause of the injury. Biggert v. Memphis Power,[54 TENNAPP 661] etc., Co., 168 Tenn. 638, 80 S.W.2d 90; Little v. N., C. & St. L. Ry. Co., 39 Tenn.App. 130, 218 S.W.2d 284.

For the reasons indicated, if there is evidence upon which to predicate liability for the death of plaintiffs' intestates it must be upon the theory of common law negligence growing out of the sale of the beer under the circumstances above outlined. We turn now to that question.

In Tarwater v. Atlantic Co., Inc., 176 Tenn. 510, 144 S.W.2d 756, the plaintiff was employed by a contractor engaged in painting defendant's building. The declaration charged that while the plaintiff was so employed the defendant distributed free beer to plaintiff's fellow workers one of whom as a result of becoming highly intoxicated dropped a plank on plaintiff causing the injuries for which he sued the owner of the building. Defendant's demurrer was sustained and plaintiff appealed. In affirming the judgment the Supreme Court said:

'In a number of states, not including Tennessee, there are special statutes, generally called 'Civil Damage Laws,' which give in certain cases a right of action to one injured because of the furnishing of intoxicating liquor. Such laws create a new right of action unknown to the common law. Currier v. McKee, 99 Me. 364, 59 A. 442, 3 Ann.Cas. 57; Spencer v. Fisher, 161 N.C. 116, 76 S.E. 731. And create a liability that did not exist at common law. Kraus v. Schroeder, 105 Neb. 809, 182 N.W. 364, 367. In Cruse v. Aden, 127 Ill. 231, 20 N.E. 73, 74, 3 L.R.A. 327, the court said, "It was not a tort at common law to either sell or give intoxicating liquor to 'a strong and able-bodied man,' and it can be said safely that it is not anywhere laid down in the books that such act was even (sic) held at common law to be culpable negligence that [54 TENNAPP 662] would impose legal liability for damages upon the vendor or donor of such liquor. * * *"'

Such is the general rule at common law in most, if not all, of the States where the question has been considered. Anno. 75 A.L.R.2d 835. The reasoning of these cases appears to be that it is the voluntary consumption of the intoxicant by the purchaser or donee and not the furnishing of the intoxicant which is the proximate cause of the injury inflicted by the donee or purchaser. It is to be observed, however, that in a number of the cases noted, the injury was not due to the operation of a motor vehicle. Such as the Tarwater case, supra. At p. 837, following a digest of the cases supporting the general rule, it is said:

'Although ordinarily a vendor of intoxicating liquor is not, at common law, answerable to a third person for injury or damage sustained by the latter as a result of the intoxication of the purchaser of the liquor, nevertheless it is established that in some...