Strand v. Village of Watson

• Court: Minnesota Supreme Court
• Writing for the Court: KNUTSON
• Citation: Strand v. Village of Watson, 245 Minn. 414, 72 N.W.2d 609 (Minn. 1955)
• Decision Date: 28 October 1955
• Docket Number: Nos. 36496,36502,s. 36496
• Parties: Osmund STRAND, Respondent and Appellant, v. VILLAGE OF WATSON, Appellant and Respondent.

Page 609

72 N.W.2d 609

245 Minn. 414

Osmund STRAND, Respondent and Appellant, v. VILLAGE OF WATSON, Appellant and Respondent.

Nos. 36496, 36502.

Supreme Court of Minnesota.

Oct. 28, 1955.

Rehearing Denied Nov. 17, 1955.

Syllabus by the Court.

1. In determining whether there has been an illegal sale of intoxicating liquor so as to give rise to a cause of action under M.S.A. § 340.95, the language used in § 340.14 to describe such illegal sale is controlling.

2. Where the legislature has created a cause of action which did not exist at common law and has provided the yardstick by which that right should be measured, recovery may not be had by the application of a standard less than that provided by the legislature.

3. When any person from the use of intoxicating liquors has affected his reason or faculty, or has rendered himself incoherent of speech, or has caused himself to lose control of the actions or motions of his person or body, he is in the contemplation of the law intoxicated.

4. In order to establish an illegal sale of intoxicating liquor to a person obviously intoxicated, it is essential to prove that the person to whom the sale was made had reached such a state of intoxication that the seller saw or by the exercise of his reasonable powers of observation should have seen that the buyer was intoxicated.

5. Whether a party has been surprised by the testimony of a witness called by him so that he should be permitted to impeach such witness by showing prior inconsistent statements is a matter which rests largely in the sound discretion of the trial court.

James R. Bennett, Appleton, Miles W. Lord, St. Paul, for respondent and appellant.

Saltness & Cudd, Dawson, John C. Haave, Montevideo, of counsel, for appellant and respondent.

Byron W. McCullagh, Minneapolis, amicus curiae.

KNUTSON, Justice.

This case arises out of a collision between an automobile driven by plaintiff and one driven by one Raymond H. Martinson. The proven facts are not seriously in dispute. The inferences which properly can be drawn from the proven facts and circumstances surrounding the activities of Martinson give rise to the main differences of opinion between the parties. From the record it reasonably may be said that the following facts could be found by the jury.

The city of Montevideo, in Chippewa County, maintains a municipal liquor store, as does defendant, Village of Watson, which lies about six miles northwest of Montevideo, in the same county. Raymond H. Martinson was an itinerant salesman of office supplies, shoes, and similar lines and lived in Lac qui Parle, which has been referred to as a village and is about seven miles west of Watson. Trunk Highways Nos. 7 and 59 concur in connecting Montevideo and Watson.

On September 22, 1953, Martinson was in Montevideo and in the afternoon visited the Montevideo liquor store where he consumed two or three 12-ounce bottles of beer while discussing business with one Jack Emmons, who has since died. He was in this liquor store for about 20 to 30 minutes. Later in the afternoon he drove to Watson, arriving there around five o'clock or later. He made calls at the Iverson garage and at a newspaper office. He was in defendant's liquor store before or between those calls, but he testified that he does not remember whether he had a drink. Later he returned to the liquor store and remained there until about 7:45 p.m. The evidence shows that during that time he consumed three or four bottles of beer. The bartender, Dean R. Torgerson, testified that he served Martinson two bottles, and Aane S. Torgerson, the store manager, testified that he served him one. The only other employee, Lowell K. Johnson, did not serve him any liquor. No liquor was sold to Martinson off-sale. He consumed the three bottles of beer while sitting in a booth in the company of Olaf L. Peterson and Carl Severhus, who were neighbors from Lac qui Parle village and were more or less casual acquaintances.

All the parties who saw Martinson in the liquor store testified that he did not show any of the usual characteristics of an intoxicated person--his responses were excellent; his speech was not slurred or sloppy; he was perfectly clear; he did not become loud or boisterous; and he showed no results of the drinks. The only evidence which might be said to be to the contrary was that of Olaf L. Peterson, and he testified as follows:

'Q. From your observations of Ray Martinson on September 22nd, 1953, while you were with him or saw him in the liquor store at Watson on that day, I'll ask you whether you have an opinion as to whether or not he was intoxicated? A. Well, I could tell on him that he had been drinking, but as far as being drunk, that I wouldn't say he was.

'Q. You wouldn't say that he was? A. No.

'Q. Would you say that he wasn't? A. I could tell he had been drinking, but I don't know how much or anything.'

On cross-examination Peterson testified as follows:

'Q. Now, let's see, Mr. Martinson had been in there sometime before you got there, and you say you could tell he had had a few drinks? A. Yes, you know, by just looking at him, and he sat there with a bottle.'

Martinson left the liquor store between 7:30 and 8 p.m. He testified that he went to his automobile, a 1939 Ford coupe, and looked over a sales order and checked his sales material. He then testified that he had a pint of brandy in his car which he had purchased some weeks previous and from which he had, previous to that date, taken two or three drinks. He consumed the rest of the pint of brandy and discarded the bottle.

About 45 minutes after leaving the liquor store and after drinking the brandy, Martinson started to drive to Montevideo to go to the Milwaukee depot. En route he had trouble with his headlight dimmer switch on the floor of his car and attempted to rectify the trouble while driving, kicking at the switch and reaching down to release it by hand. While he was thus engaged and at a point a mile or so northwest of Montevideo on Trunk Highway No. 7, his car collided head-on with plaintiff's 1946 Chrysler automobile, occupied only by plaintiff, demolishing both cars. Both plaintiff and Martinson were rendered unconscious in the collision. The collision occurred and the cars came to rest in plaintiff's traffic lane. This collision occurred at or about 8:50 p.m. The distance traveled by plaintiff was four and one-half to five miles.

Martinson was placed in an ambulance while unconscious. He revived and wandered short distances from the ambulance while plaintiff was being examined and placed therein. The ambulance driver, Arnold C. Anderson, placed him on the front seat of the ambulance for the trip to the hospital. On the way to the hospital, Martinson opened the car door and attempted to leave the ambulance. Anderson kept him in the seat by holding his belt until he arrived at the hospital.

Martinson had sustained severe cuts on both knees and blows and cuts on his forehead and lips. When he walked away from the ambulance at the scene of the collision, his gait was unsteady; he had been conscious a few minutes; his speech was slurred; and his breath carried the odor of alcohol. Anderson did not express an opinion that Martinson was intoxicated but stated:

'I would have to qualify my answer in this case. In case the man has been drinking and involved in an accident, he undoubtedly or obviously will be under some state of shock in addition to his consumption of liquor, and I would not be qualified to say he was drunk. Obviously, he had taken intoxicating spirits, and he had been involved in an accident, both, which, of course, would affect his actions.'

When they arrived at the hospital Anderson left Martinson in the ambulance while he went to get a wheel chair for him. When he returned to the ambulance Martinson was gone. Anderson took plaintiff into the hospital and then drove downtown to alert the police to look for Martinson. He then drove out to the scene of the collision and reported to highway patrolman, A. J. Keilen, that Martinson had disappeared.

About 10 p.m. Keilen left the scene of the collision and went downtown in search of Martinson. He found him sometime after 10 p.m. and took him to the hospital. While there he obtained a specimen of urine for urinalysis about 11 p.m. Keilen stated that, at the time he had Martinson in his car, he thought he was under the influence and that that is what prompted him to take the urine for analysis.

Dr. M. A. Burns, who treated Martinson's wounds at the hospital, testified that he was intoxicated. The nurse who was in attendance also said that he was intoxicated.

The sample of urine was sent to one Goodwin Joss of Minneapolis. Upon analysis, it showed a concentration of 0.27 percent by weight of alcohol. Joss testified that a person having 0.20 percent of alcohol in his urine would lose the clearness of intellect in driving possessed by an ordinary normal person. He testified that it would take at least 15 bottles of strong beer, consumed within a reasonable period of time, to obtain the percentage of alcohol found in Martinson's urine.

The jury returned a verdict of $3,000 for plaintiff. Thereafter, plaintiff made a motion for a new trial on the issue of damages only on the ground that the damages were inadequate. Defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial on all issues. Both motions were denied, and both parties have appealed. Defendant concedes and argues here that the verdict is inadequate and that, if plaintiff was entitled to recover at all, he was entitled to a larger verdict. We are inclined to agree. Plaintiff suffered some severe injuries, and his proven special damages amount to at least $2,178.44 as computed by plaintiff. Defendant computes the special damages at a higher figure, somewhat over $4,000.

1. The appeal involves mainly the question whether the evidence before us is sufficient to sustain a...