Nally v. Blandford

• Citation: 291 S.W.2d 832
• Parties: Mary Ellen NALLY, Adm'x of the Estate of Lawrence Nally, Appellant, v. Dave BLANDFORD et al., Appellees.
• Decision Date: 22 June 1956
• Court: United States State Supreme Court (Kentucky)

Page 832

291 S.W.2d 832

Mary Ellen NALLY, Adm'x of the Estate of Lawrence Nally, Appellant, v. Dave BLANDFORD et al., Appellees.

Court of Appeals of Kentucky.

June 22, 1956.

Sam Cooper Hill, Lebanon, Victor L. Kelly, Bardstown, for appellant.

Henry G. Boldrick, Lebanon, H. M. Grigsby, Springfield, for appellees.

HOGG, Judge.

This is an appeal from a judgment rendered in favor of appellees, Dave Blandford and Dick Blair, upon a motion to dismiss the complaint, in an action brought by the administratrix of the estate of Lawrence Nally for his alleged wrongful death, KRS 411.130, resulting from decedent's drinking an excess quantity of whiskey. The complaint was dismissed as to Blandford and Blair on the ground that it did not state a claim on which relief could be granted.

The complaint alleges that Blandford, while acting within the scope of his employment as an agent of Blair, who had a license to sell both package liquors and malt beverages, sold a quart of whiskey to the deceased for the purpose of injuring him, when he was in an intoxicated condition and when the seller should have known that deceased could not be safely trusted with the whiskey. The deceased, prior to the purchase of the whiskey, had made a bet with one Buckler that he could consume all of the quart of whiskey without stopping. The object for which the deceased had bought the whiskey was known to Blandford, and it was sold to him with the knowledge that he intended to drink the entire contents of the quart of whiskey. The deceased drank on the premises almost all of the quart of whiskey without stopping, and, as a result, died the following day.

Section 411.130, KRS, provides that whenever the death of a person results from an injury inflicted by negligence or wrongful act of another, damages may be recovered in a suit by the personal representative. It is well settled that KRS 411.130 gives the personal representative the same cause of action that the deceased would have if he himself had brought the action.

The wrongful acts of which the appellant complained were the unlawful sale of the quart of whiskey to deceased while he was intoxicated, or appeared to be intoxicated, as denounced by penal statute KRS 244.080, together with the fact that the sale was made for the purpose of injuring him, since it was known that due to the bet he had made he would imbibe the quart of whiskey without stopping.

Some states have statutes which provide, in substance, for liability on the part of persons selling intoxicating liquors to intoxicated persons, whether the injury be to the buyer or a third person. These statutes are generally known as civil damage statutes. Kentucky has no such statute. The common law affords no liability for injury for death following the mere sale of liquor to an ordinary man, either on the theory that it is a wrong or on the ground that it is negligence. The sale of liquor when lawful, as it is at common law, is neither an injury to nor an act directed at the purchaser. 30 Am.Jur., Intoxicating Liquors, section 607.

In the case of Britton's Adm'r v. Samuels, 143 Ky. 129, 136 S.W. 143, 144, 34 L.R.A.,N.S. 1036, the allegations of the petition were that Samuels sold liquor to Britton, who was known to be an inebriate and intoxicated at the time of the sale. Britton died as a result of drinking the liquor. Suit was...