Ward v. Rhodes, Hammonds, and Beck, Inc.

• Decision Date: 10 April 1987
• Citation: 511 So.2d 159
• Parties: Anthony W. WARD v. RHODES, HAMMONDS, AND BECK, INC., d/b/a The Brass Monkey. 85-930.
• Court: Alabama Supreme Court

Page 159

511 So.2d 159

Anthony W. WARD v. RHODES, HAMMONDS, AND BECK, INC., d/b/a The Brass Monkey.

85-930.

Supreme Court of Alabama.

April 10, 1987.

Rehearing Denied July 10, 1987.

Gary L. Blume, Tuscaloosa, for appellant.

Christopher Lyle McIlwain of Hubbard, Waldrop, Reynolds, Davis & McIlwain, Tuscaloosa, for appellee.

BEATTY, Justice.

The question presented by this appeal is whether a person injured by an intoxicated person, to whom alcoholic beverages have been sold contrary to the provisions of law, has a claim either under Alabama's Dram Shop Act (Code of 1975, § 6-5-71), or for common law negligence, or under the doctrine of premises liability. The trial court granted summary judgment in favor of the licensee as to all claims. We hold that the plaintiff stated a claim under the provisions of Alabama's Dram Shop Act; therefore, we reverse and remand as to that claim, but we affirm as to the other two claims.

At the time of the incident in question, plaintiff Ward was a 24-year-old officer in the United States Marine Corps. While on leave in Tuscaloosa, he and two brothers visited a restaurant, where he consumed one bottle of beer with dinner. Subsequently, before 1:00 a.m., the three of them went to a local lounge, The Brass Monkey, which was owned by defendant Rhodes, Hammonds, and Beck, Inc. At approximately 1:00 a.m., Marvin Rex Shotts, Jr., another lounge patron, struck Ward in the left eye. Ward was treated without hospitalization. Subsequently, Ward brought this action against Shotts; Rhodes, Hammonds, and Beck, Inc.; Charles D. Rhodes, James Harry Hammonds, and Henry Wyman Beck, both individually and as stockholders of the corporate defendant; and several fictitious parties.

Ward's complaint contained several counts. As against the corporation, Ward alleged in Count Three that its employees served alcoholic beverages to Shotts while he was in an intoxicated condition, and that while Shotts was in that condition, he assaulted Ward, to Ward's injury. Ward also alleged that the corporation was thus in violation of the Dram Shop Act, Code 1975, § 6-5-71.

In Count Four, Ward alleged that the corporation, through its employees, "willfully, negligently, and wantonly" served alcoholic beverages to Shotts while Shotts was intoxicated, and that while intoxicated Shotts "intentionally, wantonly and maliciously" assaulted Ward, to Ward's injury.

In Count Five, plaintiff charged that the corporation and its employees "had actual or constructive knowledge or could have reasonably foreseen" that Shotts was of violent habit or that when intoxicated he was likely to commit violent acts. Despite this knowledge, he alleged, the corporation's employees "willfully, negligently and wantonly" served intoxicating beverages to Shotts and, as a proximate result, plaintiff Ward was injured.

Count Six alleged that Ward was a business invitee of the corporation and that the corporation owed him a duty to maintain reasonably safe premises, which duty it Following an answer by the defendants and the answering of interrogatories filed by both sides, the corporation, and Rhodes, Hammonds, and Beck, individually and as stockholders, moved for summary judgment based upon the pleadings, the answers to interrogatories, and the affidavits of Rhodes and Loribeth Hirsberg. The moving parties and the opposing party filed memoranda pertaining to summary judgment. Plaintiff also filed the affidavit of Vincent Paul Ward in opposition to these defendants' motion. Apparently this affidavit was filed on the day the hearing was held on defendants' motion, i.e., March 26, 1986. Following that hearing, the trial court granted summary judgment in favor of the corporation and Rhodes, Hammonds, and Beck, individually and as stockholders. The trial court entered a proper Rule 54(b), Ala.R.Civ.P., certification of finality and this appeal ensued.

negligently and/or wantonly breached; and that that breach proximately caused injury to plaintiff Ward.

Plaintiff does not argue on appeal that summary judgment was improper as to Rhodes, Hammonds, and Beck, individually and as stockholders. Accordingly, our review reaches only the propriety of the trial court's order with regard to Rhodes, Hammonds, and Beck, Inc.

I.

The pertinent part of Code of 1975, § 6-5-71, states:

"(a) Every wife, child, parent or other person who shall be injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages.

"(b) Upon the death of any party, the action or right of action will survive to or against his executor or administrator.

"(c) The party injured, or his legal representative, may commence a joint or separate action against the person intoxicated or the person who furnished the liquor, and all such claims shall be by civil action in any court having jurisdiction thereof. (Acts 1909, No. 191, p. 63; Code 1923, §§ 5674, 5675; Code 1940, T. 7, §§ 121, 122.)" (Emphasis added.)

The original legislative Act which granted a right of action to a person who was injured in consequence of the illegal sale or disposition of intoxicating liquor or beverages was adopted by the legislature in 1909. This Court, commenting on the intent and purpose of the 1909 Act in Webb v. French, 228 Ala. 43, 44, 45, 152 So. 215 (1934), stated the following:

"This act, one of the companion prohibition bills of that special session, covers more than thirty pages, and broadly speaking, may be deemed a prohibition enforcement measure.

"The construction of section 8, divided into two sections in the Code, is not free from difficulty. The first portion, now section 5674 of the Code, creates a cause of action against the bootlegger (to use a modern term) for personal injuries to third persons at the hands of one to whom the bootlegger has furnished prohibited liquor and the injury is the proximate consequence of intoxication from such liquor.

"It would seem the right of action runs in favor of two classes of persons:

"(1) The person injured in person or property.

"(2) Wife, child, parent, or other person (a dependent maybe) who has been injured through loss of means of support because of personal injury to the person furnishing the means of support." (Emphasis added.)

The difficulty in the interpretation of § 6-5-71 arises out of the first words of the section--"Every wife, child, parent or other person." (Emphasis added.) However, under the separate constructions given to the language in § 6-5-71, "other person who shall be injured in person In Maples, supra, four Justices concluded that:

by any intoxicated person," in this Court's plurality decision in Maples v. Chinese Palace, Inc., 389 So.2d 120 (Ala.1980), the "injured person," the plaintiff in this case, falls within the class of persons to whom the legislature intended to give a cause of action by the enactment of the Dram Shop Act.

"The words, 'every wife, child, parent,' in § 6-5-71 denote relationship to the person to whom the intoxicating liquors were sold."

(Emphasis added.) 389 So.2d at 124. In further concluding that "other person" did not include the intoxicated person, ¹ those Justices approved

'the construction which Judge Cooley gave to the words 'other persons' in Brooks v. Cook, 44 Mich. 617, 7 N.W. 216 (1880):

" 'But 'tis a sensible and well understood rule of construction that when after an enumeration, the statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort or kind with those named....'

"Apply this rule here, and the party intoxicated is excluded. The persons enumerated are persons who stand to him in special relations, and it is therefore to be assumed that 'any other person' who may sue must also stand to him in some special relation so as to be injured by his intoxication or by the sale, etc., to him."

(Emphasis added.) Id. But the complete quotation from Judge Cooley's opinion in Brooks v. Cook, supra, was not included in the Maples opinion. A further reading of Brooks reveals that Cooley's construction of the class of persons intended by the term "other person" would, indeed, include the plaintiff in this case, who was allegedly directly injured in person by the intoxicated person:

"So far as the statute attempts any enumeration of persons who may sue, they all stand in some one of the domestic relations to the person to whom the liquor is sold, given or furnished. To that extent the statute unquestionably contemplates that there shall be three persons concerned: the person selling, giving, or furnishing, the person receiving and causing an injury, and the person injured. But there might be other cases equally meritorious with these, (see English v. Beard, 51 Ind. 489; Bodge v. Hughes, 53 N.H. 614;) and therefore after enumerating wife, child, parent, guardian and husband, the statute extends the right of action to other persons injured.

"... The persons enumerated are persons who stand to [the party intoxicated] in special relations, and it is therefore to be assumed that 'any other person' who may sue must also stand to him in some special relation so as to be injured by his intoxication or by the sale, etc., to him. A creditor might perhaps stand in that relation under some circumstances, or a contractor, or servant, or the master of a vessel, or a traveler passing him in the street, and so on. But he could not stand in any such relation to himself, and therefore cannot be understood as embraced in the terms, 'wife, child, parent, guardian, husband or other person,' injured in person, property or means of support by himself, or by reason of his intoxication...