Ramsey v. Anctil

• Decision Date: 21 July 1965
• Citation: 211 A.2d 900,106 N.H. 375
• Parties: Lucien RAMSEY v. Irene C. ANCTIL d/b/a Melrose Grill.
• Court: New Hampshire Supreme Court

Page 900

211 A.2d 900

106 N.H. 375

Lucien RAMSEY v. Irene C. ANCTIL d/b/a Melrose Grill.

Supreme Court of New Hampshire.

Argued April 6, 1965.

Decided July 21, 1965.

Burns, Bryant & Hinchey, Dover, Rich & Burns, Berlin, Robert E. Hinchey, Dover, for plaintiff.

Devine, Millimet, McDonough, Stahl & Branch, Norman H. Stahl, Manchester, for defendant.

KENISON, Chief Justice.

The first question presented by this case is whether this state recognizes a common-law action for damages for injuries to an intoxicated consumer of liquor who is served additional intoxicating liquor by a liquor licensee. Annot. 75 A.L.R.2d 833. New Hampshire has no dramshop law or civil damage law, although it did have such a law from 1870 until it was repealed in 1934. Laws 1870, c. 3, § 3; P.L. c. 144, §§ 52, 53; Laws 1934, c. 3, § 43. Hollis v. Davis, 56 N.H. 74; Hoyt v. Tilton, 81 N.H. 477, 128 A. 688; Annot. 64 A.L.R.2d 705.

The defendant argues that the repeal of our civil damage statute in 1934 is conclusive proof that there is no common-law action for injuries to an intoxicated patron who is served additional liquor by a liquor licensee. This argument goes too far, proves too much and is inconsistent with past precedents in this state in analogous cases where a criminal penalty has been substituted for a statutory civil action for damages. Hanlon v. Partridge, 69 N.H. 88, 90-91, 44 A. 807. The repeal of the civil damage statute did not abrogate the common-law principles of negligence. 1 Sutherland, Statutory Construction s. 2043 (3d ed. 1943); Annot. 54 A.L.R.2d 1152.

Sales of liquor to certain persons including minors, habitual drunkards and those under the influence of liquor are prohibited by statute (RSA 175:6) and the violator of this statute is subject to a criminal penalty. RSA 182:1. The prohibition is as follows: 'Prohibited Sales. No licensee, sales agent, nor any other person, shall sell or give away or cause or permit or procure to be sold, delivered or given away any liquor or beverage to a minor, to an habitual drunkard, to an insane person, to a person under the influence of liquor, or to any other person to whom any court, selectman of a town, chief of police, overseer of public welfare or the commission shall prohibit sale. In no case shall any section of this title be so construed as to permit sale of liquor or beverages in any so-called saloon or speakeasy.' RSA 175:6. Violation of RSA 175:6 is evidence of negligence.

We conclude that a plaintiff may maintain a common-law action for injuries received as a result of being served additional liquor, while intoxicated, by a liquor licensee. To this limited extent we agree with the reasoning of Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821; Waynick v. Chicago's Last Department Store, 269 F.2d 322, 77 A.L.R.2d 1260 (7th Cir. 1959), and of Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958) as explained and restricted in Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965).

The second question is whether contributory negligence of the plaintiff is a defense to the common-law action for injuries received by an intoxicated patron who is served additional liquor by the liquor licensee. There are cases holding that contributory negligence is not a defense. Soronen v. Olde Milford Inn, 84 N.J.Super. 372, 202 A.2d 208; Hauth v. Sambo, 100 Neb. 160, 158 N.W. 1036. 'The plaintiff's contributory negligence bars his recovery for the negligence of the defendant consisting of a violation of a statute, unless the effect of the statute is to place the entire responsibility for such harm as has occurred upon the defendant.' Restatement (Second), Torts, s. 483 (Tent.Draft No. 9, 1963). Although New Jersey and Pennsylvania decisions have construed their criminal statutes as barring the defense of contributory negligence, we are convinced that our statutes were not designed to eliminate the defense of contributory negligence or to place the entire responsibility on the liquor licensee. Hoyt v. Tilton, 81 N.H. 477, 481, 128 A. 688.

We recognize that a drunken person is as much entitled to protection as a sober one and much more in need of it. Robinson v. Pioche, Bayerque & Co., 5 Cal. 460, 461 (1855). See Wheeler v. Grand Trunk Railway, 70 N.H. 607, 619, 50 A. 103, 54 L.R.A. 955; Small v. Boston & M. R. Railroad, 85 N.H. 330, 332, 159 A. 298. We also recognize that if the statute is construed broadly to eliminate the defense of contributory negligence that the consumers of alcoholic beverages would receive greater protection and more pecuniary security. However, we find nothing in the history of our liquor laws that warrants such an interpretation and in the...