Sampson v. W. F. Enterprises, Inc.

• Decision Date: 30 December 1980
• Docket Number: No. WD,WD
• Parties: Earl D. SAMPSON and Guelda Sampson, Husband and Wife, Appellants, v. W. F. ENTERPRISES, INC., a Corporation, and Don Wilkins, Wilma Stickle, and Allen Chevrolet, a Corporation, Respondents. 31345.
• Court: Missouri Court of Appeals

Page 333

611 S.W.2d 333

Earl D. SAMPSON and Guelda Sampson, Husband and Wife, Appellants, v. W. F. ENTERPRISES, INC., a Corporation, and Don Wilkins Wilma Stickle, and Allen Chevrolet, a Corporation Respondents.

No. WD 31345.

Missouri Court of Appeals, Western District.

Dec. 30, 1980.

Motion for Rehearing and/or Transfer Denied Feb. 2, 1981.

Applications to Transfer Denied March 9, 1981.

Edward F. Aylward, Kansas City, for appellants.

Robert G. Oberlander, Kansas City, for respondent W. F. Enterprises.

Thomas J. Conway, Stephen J. Moore, Kansas City, for respondent Wilma Stickle.

Roy A. Larson, Kansas City, for respondent Allen Chevrolet.

Before WASSERSTROM, C. J., Presiding, and CLARK and SOMERVILLE, JJ.

WASSERSTROM, Chief Judge.

Plaintiffs sue for the alleged wrongful death of their minor son Earl Anthony Sampson. The trial court dismissed plaintiffs' petition, and they appeal. We affirm in part and in part reverse and remand.

On September 21, 1978, Earl patronized the Paul and Jacks cocktail lounge operated by defendants W. F. Enterprises, Inc. and Don Wilkins and during the same afternoon another cocktail lounge, Kozy Inn, operated by defendant Wilma Stickle. Plaintiffs in Count I of their petition allege that "in violation of Missouri State Law and the ordinances of North Kansas City, Missouri, these three defendants negligently and carelessly served intoxicating liquors to their son who was under 21 years of age, to wit: 20 years of age, getting him intoxicated and under the influence of intoxicating liquors and unable to properly drive an automobile...."

Plaintiffs go on to allege that Earl then went to defendant Allen Chevrolet "to pick up his pickup truck and was in an intoxicated condition which defendant through its employees, agents and servants in the scope of their employment knew or should have known that their son was intoxicated or under the influence of intoxicating liquors and that this defendant negligently and carelessly permitted their son to pick up his truck and drive from Allen Chevrolet Company to the place of his death." The petition further states that after leaving Allen Chevrolet, Earl drove his pickup truck East on Highway 210 where it left the highway, went off the shoulder of the road, went into a gully and turned over, by reason of which Earl was killed. Plaintiffs further allege in Count II of their petition, which prays punitive damages, that "the actions of defendants showed complete indifference to and conscious disregard for the safety of Earl Anthony Sampson...."

Each defendant filed a motion to dismiss for failure of the petition to state a cause of action upon which relief could be granted. The sole question on this appeal is whether the trial court properly sustained those motions.

I. As to the Tavern Owner Defendants

At common law, the action of a tavern owner in selling intoxicating liquor to a patron did not give rise to a civil cause of action either by the patron himself or by any third person who might suffer injury from acts done by the patron while in an intoxicated condition. The theory underlying that rule was that the injuries suffered were the proximate result of the patron's act in drinking, rather than the tavern keeper's act of selling. This harsh common law rule led to the enactment in many states of "dram shop acts" which did provide a civil remedy for damages. However, until quite recently the rather uniform rule continued to be that absent such a dram shop act, there was no civil cause of action for damages in this situation. 45 Am.Jur.2d Intoxicating Liquors Sec. 553, p. 852, et seq. (1969); 48 C.J.S. Intoxicating Liquors Sec. 430, p. 716 (1947).

The case of Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959) is generally credited as the seminal case which launched a trend away from that historic common law rule. New Jersey had had a dram shop act which was repealed in 1934, coincidentally with the repeal of national prohibition, and the former New Jersey local statutes were replaced by a new Alcoholic Beverage Control Act. The latter act prohibited sale of intoxicating liquors to minors and made violation punishable as a misdemeanor. The New Jersey court expressed disapproval of the old common law rule which exempted tavern owners from liability and held that the statutory prohibition of sale to minors carried not only a criminal penalty, but also gave rise to a common law tort.

Since the decision in Rappaport, there have been a very considerable number of cases adopting the same approach, but also a substantial number of cases continued to adhere to the old common law rule. The latter cases generally express sympathy with the Rappaport view but hold that a change in the ancient common law rule should be left to the legislature. 45 Am.Jur.2d Intoxicating Liquors Sec. 555, p. 854 (1969); 48 C.J.S. Intoxicating Liquors Sec. 430 (Supp. 158, 1980); Annot., Common-Law Right of Action for Damage Sustained by Plaintiff in Consequence of Sale or Gift of Intoxicating Liquor or Habit-Forming Drug to Another, 97 A.L.R.3d 528 (1980); Annot., Liability of persons furnishing intoxicating liquor for injury or death of consumer, outside coverage of civil damage acts, 54 A.L.R.2d 1152 (1957); see reference to the division of authority in Moore v. Riley, 487 S.W.2d 555 (Mo.1972).

The situation in Missouri is that this state had a dram shop act, Sec. 4487 RSMo 1929, which was repealed in 1934 by Laws 1933-34, Extra Session, p. 77. Concurrently with that repeal, Missouri adopted the new Liquor Control Law which provided and still provides in Sec. 311.310 that any licensee "who shall sell * * * any intoxicating liquor in any quantity whatsoever to any person under the age of twenty-one years, * * * shall be deemed guilty of a misdemeanor...."

The central question for determination, so far as this case is concerned, is whether Sec. 311.310 is purely for the regulation and control of the liquor business, or whether on the other hand, it was intended for the protection of minors. The first Missouri decision to speak to this question was May Dept. Stores v. Supervisor of Liquor Control, 530 S.W.2d 460, 468 (Mo.App.1975). That decision stated that Sec. 311.310 "protects the public, gives parents their natural right and protects the minors."

The next judicial pronouncement concerning this Missouri statute came in Alsup v. Garvin-Wienke, Inc., 579 F.2d 461 (8th Cir. 1978). In Alsup, defendant served intoxicating liquors to a minor who then drove on a highway and collided with plaintiff's automobile. In a suit by the plaintiff against the tavern keeper, the 8th Circuit declined to predict that the Missouri courts would follow the modern trend of authority and therefore ruled the case to be within the old common law rule under which the tavern owner had no liability. With respect to Sec. 311.310, the court held that the statute was for business regulation rather than the protection of minors or people who might be injured by intoxicated minors. In this connection Alsup referred to the contrary observation in May Dept. Stores but characterized the language employed in that case as purely dictum. It is the Alsup opinion upon which the defendant owners principally rely in the present case and which apparently constituted the basis for the trial court's decision upholding their motions to dismiss the petition here.

The language used in May Dept. Stores was unquestionably not necessary to the decision in that case and therefore strictly speaking was dictum. However, to brush off the effect of the statement made in that opinion so brusquely is to ignore the citation of authority given by Judge Simeone in support and which serves to demonstrate that the language used was intended to be a considered expression regarding the purpose of the statute.

However, we are not left with simply a conflict between Alsup and May Dept. Stores. The court in Alsup did not consider and apparently was unaware of the decision of the Missouri Supreme Court in Moore v. Riley, 487 S.W.2d 555 (Mo.1972). In Moore an altercation arose in a drinking establishment which continued when the patrons went immediately outside. Sally Riley, a young woman under the age of 21, was the companion of one of the disputants, and she threw a drinking glass in plaintiff's face, breaking the glass and cutting his eyes. Plaintiff filed suit against the operator of the tavern on the ground that the latter had violated the city liquor ordinances prohibiting minors from being on the premises of a liquor establishment, and that such violation was negligence per se which directly contributed to produce the injuries sustained by plaintiff.

The court discussed at some length the traditional common law concepts tending to insulate tavern keepers from liability and also many of the recent cases which have undertaken a reconsideration of the common law theory of nonliability. The court also made reference to Skinner v. Hughes, 13 Mo. 440 (1850) which had permitted civil recovery based on an illegal sale of liquor to a slave. The court then went on as follows:

"No recent Missouri case dealing with violation of liquor laws as a ground for tort liability has been cited by the parties. Missouri, of course, does recognize that a cause of action for civil damages may be based upon an act which is violative of a criminal statute or a penal municipal ordinance. In recognizing that such may be the basis of liability, the requirement has been laid down that the person injured must be one of the class for whose benefit an ordinance was adopted and the ordinance must have been enacted to protect persons or property, conserve public health or promote public safety. (citing cases)"

The court then went on to point out that plaintiff's petition did not charge that Miss Riley had consumed intoxicating liquors in the tavern and the court stated:

"In view of * * * the absence of effort at any time to amend the petition to...