Munford, Inc. v. Peterson, 50856

• Citation: 368 So.2d 213
• Decision Date: 21 February 1979
• Docket Number: No. 50856,50856
• Parties: MUNFORD, INC. v. Ira PETERSON et al.
• Court: Mississippi Supreme Court

Page 213

368 So.2d 213

MUNFORD, INC. v. Ira PETERSON et al.

No. 50856.

Supreme Court of Mississippi.

Feb. 21, 1979.

Rehearing Denied March 21, 1979.

Daniel, Coker, Horton, Bell & Dukes, Cy T. Faneca, Jr., Gulfport, for appellant.

Boyce Holleman, Ben F. Galloway, III, Gulfport, for appellees.

Before ROBERTSON, WALKER and LEE, JJ.

LEE, Justice, for the Court:

The parents and brothers of Scott Peterson instituted suit in the Circuit Court, First Judicial District of Harrison County, against Munford, Inc. and Tommy Blankenship for damages accruing by reason of the wrongful death of Scott Peterson. The jury returned a verdict in favor of the Petersons for one hundred thousand dollars ($100,000), judgment was entered against Munford, Inc., and in favor of Blankenship, and Munford, Inc. appeals.

On the afternoon of May 28, 1975, Scott Peterson and four other boys planned to get together after baseball practice. Peterson and one of the boys were to spend the night at the home of Blankenship. Later that evening, one of them slipped the keys to the family car, found some Vodka, and took it with him to the appointed meeting place (a boy's home). They all went to the Majic Market (owned and operated by the appellant), where they bought some orange juice and later drank it with the Vodka. One of the boys was fifteen (15) years of age, three (3) of them were fourteen (14), and one (1) was thirteen (13). After drinking the Vodka, they went back to the Majic Market and one of the fourteen-year-olds entered the establishment and purchased a six-pack containing 14-oz. cans of beer. The woman operator asked him if he was eighteen (18) years of age. He replied in the affirmative, but she made no effort to have him prove his age or identify himself. The record indicates that he looked no older than a fourteen-year-old boy.

The boys went to David Black's house (one of the party) and drank the beer. They then decided to return to the Majic Market for more beer. The seventeen-year-old sister of Black refused to let him leave because she knew they were drinking beer. The other four drove to the Majic Market where a different boy went in and bought a six-pack of beer (king-size). No inquiry was made concerning his age. They went out on a side road and drank the beer.

After consuming the second package of beer, the boys went back to the Majic Market where one of them again entered the place and bought another six-pack without any questions being asked about his age. They drove out on the side road, drank the beer and began to ride around. About 4 a. m., Blankenship was driving the automobile and was traveling west on U. S. Highway 90. A hard rain had fallen, there was water on the road, he lost control of the vehicle, crossed the median and south lanes of the highway, hit the seawall, the automobile hurdled fifty-seven (57) feet through the air, landed on the beach, and turned over five (5) times, traveling three hundred thirty-seven and a half (3371/2) feet. Scott Peterson was thrown out of the car and it rolled over him, fatally crushing his chest.

The declaration charged negligence against Munford, Inc. for selling beer to the boys in violation of the law, all of whom were under the age of eighteen (18) years, and who became intoxicated as a result of drinking the beer. Blankenship was charged with negligence in the operation of the vehicle.

I.-II.

Appellant contends (1) the trial court erred in overruling appellant's demurrer since the plaintiff failed to state a cause of action upon which relief could be granted, and (2) the trial court erred in instructing the jury that appellant was negligent as a matter of law.

Under the common law, there is no action for damages in the selling or giving away of intoxicating liquors. The rule is stated in 45 Am.Jur.2d Intoxicating Liquors § 553, at 852 (1969), as follows:

"At common law it is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and it has been frequently held that in the absence of statute, there could be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished."

Where there is no statute pertaining to a subject, the common law prevails. City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223 (1940).

While the Wisconsin Supreme Court upheld the common-law principle stated above in Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566 (1970), (Wisconsin subscribes to the comparative negligence doctrine) the dissenting opinion of Chief Justice Hallows may have expressed a modern trend:

"The time has arrived when this court should again exercise its inherent power as the guardian of the common law and hold upon general principles of common-law negligence a person, who, when he knows or should have known a person is intoxicated, sells or gives intoxicating liquor to such a person, is guilty of a negligent act; and if such negligence is a substantial factor in causing harm to a third person, he should be liable with the drunken person under our comparative-negligence doctrine. Conceded, the common law in this state for almost 100 years has been to the contrary. (Cases cited) but The basis upon which these cases were decided is sadly eroded by the shift from commingling alcohol and horses to commingling alcohol and horsepower." (Emphasis added). 176 N.W.2d at 572.

However, in the discussion of the two questions presented here, we do not look to or decide, the application of the common law in view of our statutes. Mississippi Code Annotated Section 67-3-53(b) (1972) provides the following:

"In addition to any act declared to be unlawful by this chapter, or by sections 27-71-301 through 27-71-347, and sections 67-3-17, 67-3-27, 67-3-29 and 67-3-57, it shall be unlawful for the holder of a permit authorizing the sale of beer or wine at retail:

(b) To sell, give, or furnish any beer or wine to any person visibly or noticeably intoxicated, or to any insane person, or to any habitual drunkard, Or to any person under the age of eighteen (18) years." (Emphasis added)

The above section is a part of Chapter 3, Title 67 of Mississippi Code Annotated (1972) which relates to the sale of light wine, beer and other alcoholic beverages, the purpose of which was to legalize and regulate the manufacture and sale of such beverages in the State of Mississippi. We are of the opinion that although the said chapter was enacted for the legalization and regulation of the manufacture and sale of such beverages, Section 67-3-53(b) also was adopted for the protection of the general public, including persons such as Scott Peterson. The declaration charged, among other things, that appellant sold beer to the minors in violation of Mississippi law and that such negligence contributed to the wreck and to the death of Scott Peterson.

The decisions of other states are divided on the question of liability under the facts hereinabove stated. In Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963), a seller of intoxicants to a minor was held to be civilly liable for the death of the minor to whom the product was sold. The Court said:

"At 8:30 one night in January 1960 the minor son accompanied by two friends, 17 and 18 years old, respectively, went to the Estuary Bar to purchase beverages. They were met there by Farmer who, without inquiring about their ages, delivered to them for a price one case of beer containing 24 cans and one-half pint of whiskey. The boys proceeded to a drive-in theatre and then drove to a park near a school. During these visits they drank the whiskey and 14 cans of the beer. As a consequence the petitioner's son and his younger companion became nauseated. When they recovered to some extent they went to the home of the older companion and left him there. Afterward as petitioner's son, still under the influence of liquor, according to the allegations of the complaint, was driving along the road at the rate of 55 miles an hour, accompanied by the remaining companion, he lost control of the car, struck an oak tree and turned over. Within six hours of the purchase of the alcohol petitioner's son was dead from the injuries received when the car was wrecked.

The court observed that generally, in the absence of statute, a seller of liquor is not responsible for injury to the person who drinks it. It is true that such a 'Dram Shop Act' has not been enacted in Florida.

We feel that just here we must depart from the reasoning of the able judges who determined the controversy in the District Court of Appeal although their logic along the trail from the cited cases in the absence of a Dram Shop Act appears impeccable." 155 So.2d 366, 367.

For decisions in other jurisdictions, See also Marusa v. District of Columbia, 157 U.S.App.D.C. 348, 484 F.2d 828 (1973); Brattain v. Herron, 159 Ind.App. 663, 309 N.E.2d 150 (1974); Pence v. Ketchum, 326 So.2d 831 (La.1976); Taggart v. Bitzenhofer, 35 Ohio App.2d 23, 299 N.E.2d 901 (1972); Mason v. Roberts, 35 Ohio App.2d 29, 300 N.E.2d 211 (1971).

This Court expressed the legislative concern for public safety and legislative intent when enacting the beer and wine statutes, in Alexander v. Graves, 178 Miss. 583, 173 So. 417 (1937), by stating:

"Chapter 171 of the Laws of Mississippi of 1934, and section 1, provide 'that it shall hereafter, subject to the provisions hereinafter set forth, be lawful in this state to transport, store, sell, distribute possess, receive and/or manufacture wine and beer of an alcoholic content of not more than four per centum by weight.' By section 2 it was provided 'that if any county, at an election held for the purpose under the election laws of the state, shall by a majority vote of the duly qualified electors voting in the election determine that the transportation, storage, sale, distribution, receipt, and/or manufacture of such beverages, shall not be permitted in such county, then the same shall not be permitted therein,' e...