475 So. 2d 524 | Ala. | 1985
This is an appeal from a summary judgment, made final pursuant to Rule 54 (b), A.R.Civ.P., in favor of one defendant, a liquor licensee, who allegedly furnished alcohol to the minor who caused plaintiff's injuries in an automobile accident. The trial court held that because the sale was by the licensee's employee, not the licensee, no sale "contrary to the provisions of law" took place.
Jerry Larry Putman was injured when the truck he was driving collided with a car driven by Laura Gibson Wilson. Laura was sixteen years old at the time and had been to a party where she had drunk several beers. The affidavits submitted on the summary judgment motion indicated that another minor, Mary Patton, had purchased beer at Fred's Beverages, a sole proprietorship owned by Fred Cromwell. Putman contends that Laura Wilson drank some of this beer, but appellee Fred Cromwell denies that it has been proven that Laura drank beer purchased at Fred's Beverages.
Putman and his wife sued Laura Wilson, her father, and fictitious defendants. They later substituted Fred Cromwell, d/b/a Fred's Beverages, for one of the fictitious defendants. The claim against Cromwell was that he "negligently or wantonly sold, gave, furnished, delivered, or otherwise supplied alcoholic beverages to Defendant, Laura Gibson Wilson, a minor."
Such an action is provided for in Code 1975, §
"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."
The Code section in effect at the time of the accident made it unlawful "For any licensee to sell, furnish or give away alcoholic beverages to any minor, or to permit any minor to drink or consume any alcoholic beverages on licensee's premises." Code 1975, §
The trial court granted summary judgment for Cromwell on the grounds that Cromwell's employee, not Cromwell, made the sale: "The evidence showed the sale was by one Roger Adcock, who is not a licensee. . . . There being no sale or other disposition of liquor contrary to law under the facts no right of action exists." Cromwell was not in the store at the time of the sale. He stated in his affidavit that he had told all his employees not to sell to minors, and this was uncontradicted.
After the time of this accident, the Legislature amended §
Even the summary judgment for Cromwell cannot stand, however, in light of this Court's decision in Buchanan v. MergerEnterprises, Inc.,
Although the writer of this opinion dissented from the holding in Buchanan, the rule announced therein is now the law. Under that rule, Cromwell could be held liable even without an expansive reading of "licensee" in the former version of §
Cromwell argues that the summary judgment is due to be affirmed even if not on the grounds set out by the trial court. He stated in affidavit that he specifically instructed his employees not to sell alcoholic beverages to minors, and he argues here that this uncontradicted evidence establishes that his employee was not acting within the line and scope of his employment. Cromwell also argues that it has not been established that the beer which Laura Wilson consumed came from his premises or even that she became intoxicated "to any degree of certainty." These are factual matters not passed on by the trial court and therefore inappropriate for consideration in this Court.
Finally, Cromwell argues that dram shop liability only rests on the immediate, not the remote, supplier of alcoholic beverages, citing Maldonado v. Claud's Incorporated,
For the reasons stated, the judgment of the circuit court is due to be, and it is hereby, reversed and the cause remanded.
REVERSED AND REMANDED.
All the Justices concur.