Smith v. Evans

• Decision Date: 02 May 1966
• Citation: 219 A.2d 310,421 Pa. 247
• Parties: David A. SMITH and William Claney Smith v. Leon H. EVANS, trading and doing business as Mission Inn, Appellant, and Marshall J. Policicchio and Vincent LaMonica, trading and doing business as V& M Bar. Appeals of Marshall J. POLICICCHIO and Vincent LaMonica, trading and doing business as V & M Bar.
• Court: Pennsylvania Supreme Court

Page 310

219 A.2d 310

421 Pa. 247

David A. SMITH and William Claney Smith v. Leon H. EVANS, trading and doing business as Mission Inn Appellant, and Marshall J. Policicchio and Vincent LaMonica, trading and doing business as V& M Bar Appeals of Marshall J. POLICICCHIO and Vincent LaMonica trading and doing business as V & M Bar.

Supreme Court of Pennsylvania.

May 2, 1966.

Myron W. Lamproplos, Cassidy & Lamproplos, Greensburg, for appellants.

McArdle, Harrington, Feeney & McLaughlin, Dennis C. Harrington, Pittsburgh, for appellees.

Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.

MUSMANNO, Justice.

This case has already been before us in Smith v. Clark, 411 Pa. 142, 190 A.2d 441, so that there is no necessity of repeating the details of the accident which was the basis for the trespass action instituted by the plaintiffs against the defendants. Suffice it to say that the minor plaintiff David A. Smith charged the defendants with serving him, a minor, intoxicating liquors while he was in a state of visible intoxication, and that the intoxication resulted in an accident from which he emerged considerably injured. At the first trial the jury returned a verdict for the minor plaintiff and his guardian ad litem in the total sum of $59,000. The defendants appealed and a new trial was ordered on the ground that the judge's charge did not sufficiently distinguish between the factors of the minor's age and his state of inebriety.

The case was retried and the record reveals that the Trial Court stayed within the guidelines laid down by this Court's instructive decision. This time the jury returned a verdict in favor of the plaintiffs in the total sum of $27,997.31. The defendants have appealed, asserting again that the Trial Court charged erroneously. With all its mutations, the law has not changed since we rendered our decision on April 26, 1963, and what was the law then, is the law today. If a tavern keeper serves intoxicating liquors to anyone in a visible state of intoxication, he violates the law, and, if as the result of such intoxication, the consumer of the intoxicants injures someone else or himself, the tavern keeper is liable in tort. The Trial Court here so charged the jury.

The appellants complain because the Trial Court refused to affirm their point for charge which read:

'Even if David A. Smith, a minor, was served alcoholic beverages by one or both defendants in this case, this accident did not occur because he was a minor, or because, as a minor, he had been served some intoxicants. Therefore, I instruct you, as a matter of law, that Smith's being a minor cannot be considered by you as the basis for liability on the part of the defendants.'

The refusal of the Trial Court to approve this point was a prudent one. The first sentence of the point is distinctly objectionable because, to affirm it, would have meant that the Trial Court had definitively and factually concluded that the accident did not occur because the minor plaintiff had been served intoxicants. Such an affirmance would have invaded the province of the jury which had the responsibility of deciding whether the minor was intoxicated and if that intoxication precipitated the accident.

Obviously, David Smith's being under age would not of itself fasten tortious liability on the tavern keeper for any injury resulting from his minority, unassociated with intoxication or being under the influence of intoxicating liquors. However, the jury could conclude, if the evidence warranted such a conclusion, that the plaintiff's minority made him more susceptible to the effects of alcohol and, if the alcoholic domination, even though induced because of the driver's inexperience with spirituous beverages, became the proximate cause of a tort, the tavern keeper who poured the potent potable into the minor could not escape liability merely because the drinker had not attained majority.

In fact, defendants' counsel in their brief, ...