Mitchell v. Shoals, Inc.

Decision Date11 April 1967
Citation19 N.Y.2d 338,280 N.Y.S.2d 113,227 N.E.2d 21
CourtNew York Court of Appeals Court of Appeals
Parties, 227 N.E.2d 21, 26 A.L.R.3d 1107 Yvonne L. MITCHELL Respondent, v. The SHOALS, INC., Appellant.

John P. Carson, New York City, and Sidney Jacobi, Staten Island, for appellant.

Richard E. Shandell, New York City, and Marvin Lechtman, for respondent.

FULD, Chief Judge.

On February 2, 1960, after having dinner together, the plaintiff, Yvonne Mitchell, her escort, Robert Taylor, and another couple drove to The Shoals, a restaurant on Staten Island, at about 9:00 P.M. for 'a few drinks' and some dancing. Between dances, they had their drinks. Miss Mitchell, after consuming several, passed out and remained asleep for the rest of the evening. Taylor, who was on a diet of 'double' bourbons 'straight', became drunk and noisy. At one point, after he had fallen to the floor, the bartender was told not to let him have anything more to drink. Despite this admonition and Taylor's obviously intoxicated condition, the bartender--responding with 'don't bother me; he is having a good time * * * let him enjoy himself'--served him three or four more double straight bourbons. The two couples left the restaurant at about 1 o'clock in the morning. The plaintiff, still asleep, was assisted to the car and placed in the front seat and Taylor, not to be dissuaded from driving, got behind the wheel and drove off. He apparently lost control of the car some nine miles from the restaurant; it left the roadway and crashed into a building. He was killed and the plaintiff was seriously injured. She brought this action for damages, under New York's version of the 'Dram Shop Act' (Civil Rights Law, § 16, now General Obligations Law, Consol.Laws, c. 24--A, § 11--101), against the defendant restaurant. The jury returned a verdict in her favor, and a divided Appellate Division affirmed the resulting judgment. 1

The Alcoholic Beverage Control Law renders it a crime for any person to sell or deliver any alcoholic beverage to one who is intoxicated or under the influence of liquor (§§ 65, 130, subd. 3), and section 16 of the Civil Rights Law, as it read in 1960, recited in part that

'Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.'

Although the statute--its forerunner goes as far back as 1873 (L.1873, ch. 646; see Note, 8 Syracuse L.Rev. 252)--does not give the inebriated person a cause of action if he is himself injured (see Moyer v. Lo Jim Cafe, 19 A.D.2d 523, 240 N.Y.S.2d 277, affd. 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212; Scatorchia v. Caputo, 263 App.Div. 304, 32 N.Y.S.2d 532), it does entitle any one else injured 'by reason of the intoxication' of such person to recover damages from the party dispensing the liquor. There is no justification, either in the language of the legislation or in its history, for exonerating the latter simply because he had also served, and brought about the of, the third person who was hurt. As long as the latter does not himself cause or procure the intoxication of the other, there is no basis, under the statute, for denying him a recovery from the party unlawfully purveying the liquor.

In the case before us, the plaintiff had herself become drunk while drinking with Taylor but she had not, in any sense, caused or procured his intoxication. She had neither purchased the drinks nor encouraged him to take more than he could weather. The plaintiff had simply had a few drinks and passed out before her escort's inebriacy became really serious. This did not amount to a guilty participation in his intoxication. To deny her a...

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  • Anderson v. Moulder
    • United States
    • West Virginia Supreme Court
    • May 18, 1990
    ...48, 209 N.W.2d 902 (1973). See Jackson v. PKM Corp., 430 Mich. 262, 422 N.W.2d 657 (1988); Mitchell v. Shoals, Inc., 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21, 26 A.L.R.3d 1107 (1967); Miller v. City of Portland, 288 Or. 271, 604 P.2d 1261 (1980). See generally 45 Am.Jur.2d Intoxicatin......
  • Deeds v. United States
    • United States
    • U.S. District Court — District of Montana
    • November 10, 1969
    ...106 N.H. 375, 211 A.2d 900, 901; Majors v. Brodhead Hotel, Pa.1965, 416 Pa. 265, 205 A.2d 873; Mitchell v. Shoales, Inc., N.Y.1967, 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21; Pike v. George, Ky.1968, 434 S.W.2d 18 The majority opinion also called attention to the fact that Idaho once h......
  • Nelson v. Araiza
    • United States
    • Illinois Supreme Court
    • January 27, 1978
    ...him a recovery from the party unlawfully purveying the liquor." (Emphasis added.) (Mitchell v. Shoals, Inc. (1967), 19 N.Y.2d 338, 341, 280 N.Y.S.2d 113, 116, 227 N.E.2d 21, 23, 26 A.L.R.3d 1107, 1110.) There the plaintiff went out to drink with the inebriated party. After consuming several......
  • McNally v. Addis
    • United States
    • New York Supreme Court
    • December 3, 1970
    ...of its provisions is negligence Per se and the contributory negligence of the injured person is no defense (Mitchell v. Shoals, Inc., 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21; 45 Am.Jur.2d, Intoxicating Liquors § 588). Nevertheless, neither the consumer nor his estate has a cause of a......
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