Swartzenberger v. Billings Labor Temple Ass'n, 14182

• Decision Date: 06 December 1978
• Docket Number: No. 14182,14182
• Citation: 586 P.2d 712,179 Mont. 145,35 St.Rep. 1625
• Parties: Mary F. SWARTZENBERGER, Individually and as Personal Representative, Plaintiff and Appellant, v. BILLINGS LABOR TEMPLE ASSOCIATION and Mark Franklin Dalley, d/b/a the Silver Dollar Bar, Defendants and Respondents.
• Court: Montana Supreme Court

Page 712

586 P.2d 712

179 Mont. 145

Mary F. SWARTZENBERGER, Individually and as Personal Representative, Plaintiff and Appellant, v. BILLINGS LABOR TEMPLE ASSOCIATION and Mark Franklin Dalley d/b/a the Silver Dollar Bar, Defendants and Respondents.

No. 14182.

Supreme Court of Montana.

Submitted Oct. 11, 1978.

Decided Nov. 8, 1978.

Rehearing Denied Dec. 6, 1978.

R. V. Bottomly argued, Great Falls, for plaintiff and appellant.

Anderson, Symmes, Brown, Cebull & Jones, Billings, Richard F. Cebull argued, Billings, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Jack S. Ramirez argued, Billings, for defendants and respondents.

SHEEHY, Justice.

Plaintiff, Mary F. Swartzenberger, appeals from the summary judgment of the District Court, Yellowstone County, granted in favor of defendants, Billings Labor Temple Association and Mark Franklin Dalley, d/b/a The Silver Dollar Bar.

Joseph F. Swartzenberger (decedent) was a steelworker in Billings, Montana. On October 30, 1974, decedent reported to work at 7:30 a. m., but left for the day at 8:00 a. m. because rain made work at the construction site impossible. Later that morning he went to the Labor Temple Bar and began what was to be his last overindulgence in alcohol. At noon, he went to The Silver Dollar Bar where he spent the afternoon and early evening drinking with other steelworkers. According to Monty Bendt, decedents companion, he was "fairly well plastered" when he entered The Silver Dollar Bar at noon.

Decedent and Bendt returned to the Labor Temple Bar between 7:00 and 8:30 p. m. The bartender stated decedent switched from beer to ditches (bourbon and water) and was loud and rowdy as usual, until he passed out in the bathroom. Lawrence Bendt, a superintendent for decedent's employer, and Monty Bendt helped decedent up and decided to take him home. The Labor Temple Bar is located in the basement of the Labor Temple and in order to exit therefrom, it is necessary to climb a number of steps to the street level. The men helped decedent to the top of the stairs, where Monty Bendt waited with decedent while Lawrence Bendt went to get his car. Decedent, wanting another drink, pulled away from Monty Bendt, took one step, and fell down the stairs sustaining injuries which resulted in his death the following day. A blood sample revealed decedent's blood alcohol level was .37 percent (.0037) by weight of alcohol.

On December 17, 1975, Mary F. Swartzenberger filed a complaint in District Court, individually and as personal representative of decedent's two children, seeking damages from the Billings Labor Temple Association and the owner of The Silver Dollar Bar. Mrs. Swartzenberger was divorced from her husband some nine months prior to his death. The complaint alleged that defendants, in willful, wanton and reckless disregard of decedent's safety, and in violation of Montana statutes, served decedent intoxicating liquors while he was in a state of intoxication thereby directly causing his death.

On January 17, 1978, the District Court, Yellowstone County, found there was no genuine issue as to any material fact and granted defendants' motions for summary judgment.

The sole issue to be decided in this case is whether summary judgment was properly awarded to defendants. More specifically, viewing the material facts in plaintiff's favor, were defendants entitled to judgment as a matter of law?

Montana does not have a Civil Damage Act or Dram Shop Act, giving a right of action to persons injured by an intoxicated person (or to intoxicated persons who injure themselves) against the person selling or furnishing the liquor which caused the intoxication. Therefore, we must look to the case law for guidance on the instant question.

In Deeds v. United States (D.C.Mont.1969), 306 F.Supp. 348, the court wrestled with the question, " . . . is there a right of action under Montana law against the person selling or furnishing intoxicating liquor to a minor or intoxicated person in favor of a person injured by the intoxicated person as a consequence of his intoxication?" The facts giving rise to this issue occurred on and near the Havre Air Force Station in north central Montana. Plaintiff, a 17 year old high school junior, attended a party at the Station on the night of May 30, 1963. During the party, Air Force personnel sold or otherwise distributed intoxicating liquors to high school girls and airmen, knowing they were minors. Airmen Gerald B. Tanberg, age 19, consumed an excessive amount of liquor and became intoxicated, but Air Force personnel continued to dispense liquor to him. Throughout the course of the evening, it was known by those persons dispensing liquor that plaintiff and others attending the party came to the Station from Havre, a distance of 39 miles, and that the only way for them to return to Havre was by private automobiles operated by Air Force personnel. Sometime between two and three in the morning on May 31 plaintiff and a companion asked Tanberg to give them a ride to Havre. From the time they left the Station, Tanberg drove at a high rate of speed. While Tanberg was driving in a grossly negligent and reckless manner, his car left the road and rolled over, wrecking the car and injuring the three occupants.

The Honorable William J. Jameson, finding no controlling authority in this Court's decisions, followed what he deemed to be the proper rule, and held that under the particular circumstances before him, the sale and serving of liquor to Tanberg in violation of Montana law was a proximate cause of the accident and resulting injuries to the plaintiff. In reviewing the law in Montana, Judge Jameson closely scrutinized our only discussion of the proximate cause issue in intoxication produced injury situations and stated:

"In Nevin v. Carlasco, 1961, 139 Mont. 512, 515, 365 P.2d 637, 639, the court affirmed a judgment of nonsuit denying recovery for injuries sustained by plaintiff, a female patron of a bar, when a male patron, who, as he attempted to kiss plaintiff, was shoved, and fell off a bar stool and knocked plaintiff to the floor. After pointing out the lack of circumstances which must ordinarily exist to impose the duty upon a tavern keeper to protect his patrons, in answering appellant's contention that certain laws of Montana dealing with the liquor business were violated the court said:

" 'If we were to accept this contention the evidence is devoid of any knowledge on the part of respondents of the violation of any of these statutes. The rule followed by most courts is that when damages arise from voluntary intoxication, the seller of the intoxicant is not liable in tort for the reason that his act is not the efficient cause of the damage. The proximate cause is the act of him who imbibes the liquor.

"The appellant was obliged to prove a set of circumstances which created a duty to the injured patron and facts that would prove a breach of that duty. See Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530. Having failed to do so the judgment of the district court was correct and it is hereby affirmed.'

"The reference to Fleckner v. Dionne, supra, might indicate that Montana would follow California in holding that the furnishing of liquor was not the proximate cause of plaintiff's injury. On the other hand, the court indicates also that there might be 'a set of circumstances'...