Parker v. Miller Brewing Co.
| Decision Date | 26 January 1990 |
| Citation | 560 So.2d 1030 |
| Parties | Ouida S. PARKER, individually and as administratrix of the estate of Miriam Paige Small, deceased v. MILLER BREWING COMPANY and Supreme Beverage Company, Inc. Ouida S. PARKER, individually and as administratrix of the estate of Miriam Paige Small, deceased v. BARBARA ENTERPRISES, INC. 88-1187, 88-1430. |
| Court | Alabama Supreme Court |
Jere L. Beasley and Kenneth J. Mendelsohn of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellant.
N. Lee Cooper and Mark Strength of Maynard, Cooper, Frierson & Gale, Birmingham, for appellee Miller Brewing Co.
J. Gusty Yearout and Deborah S. Braden of Yearout, Myers & Traylor, Birmingham, for appellee Supreme Beverage Co.
Gary L. Blume of Blume & Blume, Tuscaloosa, for appellee Barbara Enterprises, Inc.
Ouida S. Parker's minor daughter, Miriam Paige Small, attended a party hosted by two other minors on August 5, 1988. Those two minors had purchased the beer for the party from the retailer defendant, Barbara Enterprises, Inc., doing business as Grant's University Market in Tuscaloosa, Alabama. The beer had been distributed by the wholesaler defendant, Supreme Beverage Company, and had been manufactured by the manufacturer defendant, Miller Brewing Company.
Miriam Paige Small became intoxicated at the party and then attempted to drive an automobile. She lost control of the automobile and was fatally injured. Mrs. Parker filed suit on March 2, 1989, as the mother of Miriam Paige Small, a minor, and as administratrix of her estate, alleging liability on the part of these defendants for the death of her daughter. She attempted to state a claim against the defendants based upon Code 1975, § 6-5-70 (the "Civil Damages Act"), § 6-5-71 (the "Dram Shop Act"), and/or common law negligence.
The trial court granted the motions to dismiss filed on behalf of Miller and Supreme Beverage for failure to state a claim upon which relief could be granted. Rule 12(b)(6), A.R.Civ.P. Mrs. Parker appealed. The motion to dismiss filed by Barbara Enterprises, asserting the same grounds, was granted on July 25, 1989. Mrs. Parker appeals from that dismissal also, and the two appeals have been consolidated for purposes of writing this opinion.
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Maples v. Chinese Palace, Inc., 389 So.2d 120 (Ala.1980). (Citations omitted.)
The question before this court is whether the plaintiff can state a claim that entitles her to relief against Barbara Enterprises, Inc., Supreme Beverage Company, Inc., and/or Miller Brewing Company under the Civil Damages Act, the Dram Shop Act, or the common law of negligence.
The Civil Damages Act, § 6-5-70, Ala.Code 1975, provides as follows:
"Either parent of a minor, guardian or a person standing in loco parentis to the minor having neither father nor mother shall have a right of action against any person who unlawfully sells or furnishes spirituous liquors to such minor and may recover such damages as the jury may assess, provided the person selling or furnishing liquor to the minor had knowledge of or was chargeable with knowledge of such minority...."
Thus, the question becomes whether any of these defendants "furnished spirituous liquors" to the decedent, Miriam Paige Small. The plaintiff cites us to the case of Laymon v. Braddock, 544 So.2d 900 (Ala.1989), in which we stated as follows:
"We interpret the words 'furnishes' and 'furnishing' in § 6-5-70 to extend liability under § 6-5-70 to a seller or furnisher of spirituous liquors, who from the totality of the circumstances must reasonably infer that the person to whom the spirituous liquor is sold or furnished will permit a minor to consume some of this spirituous liquor."
544 So.2d 900, 904 (Ala.1989). Mrs. Parker urges us to conclude that under these facts the defendants "furnished" spirituous liquor to her minor daughter.
We set forth a duty in Laymon on the part of the seller: "If there is a purchaser of spirituous liquors, the seller has a duty to ascertain that the purchaser is not a minor." Id. at 903. Mrs. Parker argues that the seller, having sold beer to a minor, can be held to have furnished the beer to her daughter. She contends that she can prove that the two minors who purchased the beer bought two kegs. She argues that it is illogical that the two minors who purchased the kegs of beer were each going to consume one keg of beer. Therefore she argues that "in light of all of these facts one must reasonably infer that the person to whom spirituous liquor was sold or furnished would permit a minor to consume some of the spirituous liquor." We disagree. The fact that the seller sold beer to a minor, assuming that the seller knew the purchaser was a minor, does not support the conclusion that the seller furnished beer to another minor. The statute creates a right of action in a parent of a minor against any person who unlawfully sells or furnishes spirituous liquors to such minor. The sellers here cannot be said to have furnished beer to Miriam Paige Small by selling beer to two other minors.
The defendants also cite us to the concurring opinion in Laymon v. Braddock, for the proposition that beer is not a "spirituous liquor" under § 6-5-70. We need not, however, reach the question of whether beer is a "spirituous liquor," for when the facts of this case are weighed against the test enunciated in Laymon, it is clear that these defendants did not "furnish" anything to the plaintiff's decedent. There is no inference to be made from the totality of the circumstances in this case that she was "furnished spirituous liquors"--or any other kind--by these defendants.
Therefore, there is no claim upon which relief can be granted to this plaintiff under § 6-7-70 (the Civil Damages Act). The trial court did not err in granting the motions to dismiss the claims based upon that section.
The pertinent part of the Dram Shop Act, § 6-5-71, states:
In Ward v. Rhodes, Hammonds, & Beck, Inc., 511 So.2d 159 (Ala.1987), we considered the question of who is provided a cause of action by § 6-5-71. We held that one class of potential plaintiffs consists of the wife, child, or parent of a party who has been injured in person by an intoxicated person:
"Nevertheless, in view of the prevailing rule of intra-family immunity and the fact that there was no expression of an intent to the contrary, we think the 1909 legislature must have intended that 'wife, child, [and] parent' refer to those of the party injured in person by the intoxicated person." Id. at 164.
The second class of potential plaintiffs is the "other person injured":
The plaintiff argues that individually she falls within this "other person" category as one "injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person." 1 She argues that she was injured in consequence of the intoxication of her daughter by reason of the sale made by Grant's University Market to two minors of intoxicating beverages "contrary to the provisions of law," i.e., in violation of § 28-3A-25(a)(3) and Alabama Alcoholic Beverage Control Board Rule 20-X-6-.10.
However, assuming she could be found to fit into the "other person" category, she still does not have a claim, because under § 6-5-71(c), a party injured may commence an action "against the person intoxicated or the person who furnished the liquor." When we revisit the question of whether any of these defendants "furnished" or "provided" the liquor to Miriam Paige Small, we find that they did not.
We said the following in Martin v. Watts, 513 So.2d 958 (Ala.1987):
Id., at 963. These defendants did not provide the alcoholic beverages to the intoxicated person, nor was there a sale by these defendants to the intoxicated person. Therefore, the plaintiff has no cause of action under the Dram Shop Act. See Beeson v. Scoles Cadillac Corp., 506 So.2d 999, 1001 (Ala.1987).
The third question presented is whether plaintiff has a direct common law cause of action under the facts of this case. We addressed this question also...
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