Stabs v. City of Tower, 35013

• Decision Date: 23 December 1949
• Docket Number: No. 35013,35013
• Citation: 40 N.W.2d 362,229 Minn. 552
• Parties: STABS v. CITY OF TOWER.
• Court: Minnesota Supreme Court

Page 362

40 N.W.2d 362

229 Minn. 552

STABS v. CITY OF TOWER.

No. 35013.

Supreme Court of Minnesota.

Dec. 23, 1949.

Syllabus by the Court

1. A municipality owning and operating an on- and off-sale exclusive liquor store pursuant to authorization under M.S.A. 340.07, subd. 5, is not required to file the bond required by § 340.12 of on-sale and off-sale liquor dealers.

2. The owner and operator of an on- and off-sale exclusive liquor store is not liable to a patron for harm self-inflicted as a consequence of having become so highly intoxicated that he did not know what he was doing from drinking intoxicating liquor furnished to him in violation of § 340.73, subd. 1, by the operator when the patron was 'obviously' intoxicated.

Stone, Manthey & Carey, Virginia, for apellant.

D. A. Bourgin & W. J. Kraker, Virginia, for respondent.

PETERSON, Justice.

This is an appeal from an order overruling a demurrer to two causes of action alleged in the complaint.

Two questions are presented for decision, viz.:

(1) Whether a municipality owning and operating an on- and off-sale exclusive liquor store pursuant to statutory authorization (M.S.A. 340.07, subd. 5) is required to file the bond required by statute (§ 340.12) of on- and off-sale liquor dealers; and

(2) Whether the owner and operator of an on- and off-sale exclusive liquor store is liable to a partron for harm self-inflicted as a consequence of having become so highly intoxicated that he did not know what he was doing from drinking intoxicating liquor furnished him in violation of statute (§ 340.73, subd. 1) by the operator when the patron was 'obviously' intoxicated.

Four separate causes of action were alleged in the complaint. The third and fourth causes of action were dismissed at the hearing on the demurrer. The trial court overruled the demurrer as to the first and second causes of action. On the appeal, the order overruling the demurrer is challenged only so far as it relates to the first cause of action. The allegations of the first cause of action, so far as here material, are that defendant owned and operated a municipal liquor store; that by its servants and employes it furnished intoxicating liquor to plaintiff in such store when he was 'obviously' intoxicated and that he became so highly intoxicated he did not know what he was doing; that while he was in such highly intoxicated condition he was arrested by police officers of defendant and lodged in its jail; and that, while in jail, as a consequence of his intoxicated condition, he broke certain plumbing fixtures and came in contact with them in their broken condition in such a way as to sustain severe bodily injuries. We take judicial notice of the facts that defendant is a city of the fourth class and, as such, is a municipality other than a city of the first, second, or third class and entitled under § 340.07, subd. 5, to own and operate a municipal liquor store, and that defendant is governed by a home rule charter (adopted June 18, 1928). There are no allegations as to whether the liquor store owned and operated by defendant is an 'exclusive liquor store' as defined in the statute just cited or whether defendant filed a liquor dealer's bond. The complaint was construed below as meaning that the store in question was of the character mentioned and that defendant had not in fact filed such a bond. On the appeal, defendant in effect admits that such construction accords with the facts.

Plaintiff predicates his right to recover upon two grounds: (1) That, by reason of the fact that defendant violated § 340.73, subd. 1, ¹ by furnishing plaintiff intoxicating liquor when he was obviously intoxicated, defendant violated the conditions of the bond required by § 340.12 ² of on- and off-sale liquor dealers and thereby became liable to plaintiff for a penalty measured by the actual damage sustained by him as a consequence of such illegal acts on defendant's part; and (2) aside from any right to recover a penalty, defendant is liable in tort by reason of furnishing plaintiff intoxicating liquor in violation of § 340.73, subd. 1, when he was 'obviously' intoxicated, thereby causing him to become so highly intoxicated that he did not know what he was doing and to inflict upon himself, while he was in jail, the injuries mentioned.

In support of the first claimed ground of recovery, plaintiff contends that under § 340.12, as construed in Mayes v. Byers, 214 Minn. 54, 7 N.W.2d 403, 144 A.L.R. 821, the liability of an operator of an on- and off-sale exclusive liquor store to a patron upon his liquor dealer's bond for harm caused by an illegal act in connection with the operation of his establishment is not for a tort, but for a penalty measured by the damages sustained by the patron. In support of the second claimed ground of recovery, plaintiff contends that by furnishing liquor to him when he was an 'intoxicated person' defendant violated a statute (§ 340.73, subd. 1) enacted for the protection of intoxicated persons and the others therein mentioned as a class unable to exercise self-protection, thereby rendering itself liable to plaintiff as a member of the protected class for harm befalling him as a consequence of such violation of the statute. Plaintiff expressly disclaims liability on defendant's part under the civil damage act, § 340.95.

Defendant contends: (1) As to the first ground of liability asserted, that it was not required, as the owner and operator of a municipal on- and off-sale exclusive liquor store, to file the liquor dealer's bond prescribed by § 340.12; and that consequently it is not liable for the penalties provided therein for violation of the conditions of such a bond; and (2) as to the second ground of liability asserted, that, while furnishing intoxicating liquor to an intoxicated person is illegal under § 340.73, subd. 1, it was not the purpose of that section to confer upon a buyer of intoxicating liquor who voluntarily becomes intoxicated by the consumption thereof a right of action against the seller for harm occurring to him as a consequence of his intoxicated condition.

The arguments below upon the hearing of the demurrer and the presentation here have proceeded upon the assumption that, if a municipality as the owner and operator of an on- and off-sale exclusive liquor store is required to file a liquor dealer's bond under § 340.12, defendant is liable for the penalties provided by the statute for violation of the conditions of such a bond, regardless of whether it had in fact filed one. Under the rule of the law of the case--which is that, where parties consent to try their case upon a particular theory of what the law of the case is, such rule will be applied on appeal (Edelstein v. D.M. & I.R. Ry. Co. 225 Minn. 508, 31 N.W.2d 465; 1 Dunnell, Dig. & Supp. § 404)--we shall assume with the consent of all concerned for purposes of decision, but without so deciding, that defendant's liability, if any, for such a penalty is unaffected by its failure to file a liquor dealers' bond.

1. Whether, as the consequence of violating the conditions of the liquor dealer's bond required by § 340.12 by illegally furnishing plaintiff intoxicating liquor, defendant became liable, under the doctrine of Mayes v. Byers, 214 Minn. 54, 7 N.W.2d 403, 144 A.L.R. 821, ³ for a penalty measured by plaintiff's actual damages, depends upon whether a municipality owning and operating an on- and off-sale exclusive liquor store is required by the statute to file such a bond. The question thus raised is one of statutory construction.

In answering that question we should endeavor to discover and to effectuate the legislative intent, § 645.16; Wheeler Lbr. B. & S. Co. v. Seaboard Surety Co., 218 Minn. 443, 16 N.W.2d 519. In so doing, we should consider the 'contemporaneous legislative history' (§ 645.16(7)), 'legislative and administrative interpretations of the statute' (§ 645.16(8)), the mischief to be remedied and the objects sought to be accomplished by the statute (§ 645.16(3, 4); Governmental Research Bureau, Inc. v. Borgen, 224 Minn. 313, 28 N.W.2d 760), other statutes relating to the same subject matter--the regulation and control of the sale and use of intoxicating liquors--so far as they shed light on the question (County of Hennepin v. County of Houston, 229 Minn. ---, 39 N.W.2d 858, filed November 25, 1949; State ex rel. Bergin v. Fitzsimmons, 226 Minn. 557, 33 N.W.2d 854; State ex rel. Interstate Air-Parts v. M.-St. P. Metropolitan Airports Comm., 223 Minn. 175, 25 N.W.2d 718; Foley v. Whelan, 219 Minn. 209, 17 N.W.2d 367); and the desirability of avoiding an absurd result if that can be done without doing violence to the language of the statute (§ 645.17(1); State v. Industrial Tool & Die Works, Inc., 220 Minn. 591, 21 N.W.2d 31).

The statute to be construed (§ 340.12), so far as here material, provides in effect that 'every person' desiring an on- and off-sale exclusive liquor store license shall make written application therefor to the governing body of the municipality where the store is to be located; that in such application the applicant shall give such information concerning himself as may be required by the local governing body; that an applicant for an on-sale license shall either file with the clerk of the municipality a surety bond or liability insurance policy in amount from $3,000 to $5,000, as the local governing body shall determine, or in lieu thereof deposit an equal amount of cash; that if a bond is filed the municipality shall be named therein as obligee, conditioned as prescribed by the statute; and that in certain cases the district court may order the bond forfeited to the 'municipality named as obligee in such bond'. Other related sections are: § 340.07, subd. 5, which defines an 'exclusive liquor store' and provides that such stores shall be under the control of an individual owner or manager and that 'if located in municipalities other than cities of...