Summary
In Robinson v. Stilgenbauer (1968), 14 Ohio St.2d 165, the court considered an action by an executrix for damages for wrongful death.
Summary of this case from Taggart v. BitzenhoferOpinion
No. 41029
Decided May 8, 1968.
Negligence — Wrongful death action — Proximate cause — Insufficient evidence — Summary judgment — Sale of intoxicating liquor to drunkard.
APPEAL from the Court of Appeals for Stark County.
This is an action by the executrix of an estate, as plaintiff, to recover damages for wrongful death claimed to have been proximately caused by the negligence of defendant Ferrero, and others, in serving intoxicating beverages to a known habitual drunkard.
So far as defendant Ferrero is concerned, the petition alleges that he "proximately contributed to" the death of plaintiff's decedent, who was killed in a collision with a motor vehicle operated by Clyde Stilgenbauer, because:
(1) Stilgenbauer was so intoxicated at the time of the collision that he was incompetent to control his automobile.
(2) Defendant Ferrero and several others "caused and contributed to the intoxication of * * * Stilgenbauer by selling intoxicating liquors and alcoholic beverages to him prior * * * to the * * * collision."
(3) They "knew or could ascertain by observation of * * * Stilgenbauer, that he was then and there under the influence of liquor and intoxicated" and
(4) They knew that "Stilgenbauer was one who habitually drank intoxicating liquor to excess, and * * * were notified by the * * * Department of Liquor Control, and" Stilgenbauer's wife "to cease and desist from the sale of intoxicating beverages and liquors to * * * Stilgenbauer * * *."
The petition alleges that the collision occurred at 10:42 a.m., on March 4, 1965.
The affidavits filed in support of, and the affidavit and deposition filed in opposition to, the motion of defendant Ferrero for summary judgment discloses without dispute that the only sales of liquor by defendant Ferrero to Stilgenbauer on that day occurred during a 10-minute visit by Stilgenbauer to Ferrero's tavern at 7:15 a.m.; that Stilgenbauer then had two Michelob beers and two three-quarter ounce shots of I.W. Harper whisky; and that Stilgenbauer did not appear to have been drinking before this visit.
The only suggestion in the record as to Stilgenbauer being drunk at any time other than the time of the collision over three hours after his visit to defendant Ferrero's tavern, apart from innuendoes that might be drawn from leading questions of plaintiff's counsel, were statements of defendant Ferrero indicating that at some unspecified times over a period of 40 years (a) Stilgenbauer "had his share of troubles for being drunk," (b) Stilgenbauer's wife had told defendant Ferrero "a couple of times * * * that she turned * * * other places in" to the Liquor Department "and had them write a letter" but had "never turned" Ferrero's "name in and that" Ferrero "shoundn't serve" Stilgenbauer "when he was drunk" and (c) Ferrero had asked Stilgenbauer "to go a few times * * * if he would get talking" and Stilgenbauer would then go, but Ferrero had never thrown Stilgenbauer out "for drinking."
Defendant moved for summary judgment and that motion was sustained. On appeal to the Court of Appeals the judgment of the Court of Common Pleas was affirmed. The cause is before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Messrs. Reminger Reminger, for appellant.
Mr. Paul V. Howell, for appellee.
Plaintiff concedes that Ferrero was never notified by the Department of Liquor Control not to sell intoxicants to Stilgenbauer.
Although the evidence offered in opposition to the motion for summary judgment might support reasonable inferences (1) that Stilgenbauer's wife told defendant Ferrero not to "serve" Stilgenbauer "when he was drunk" and (2) that defendant Ferrero knew that Stilgenbauer sometimes became intoxicated, there is nothing in the record that will support a reasonable inference that Stilgenbauer had been drinking when he came to Ferrero's tavern at 7:15 a.m. on the day of the collision or was intoxicated when he left, or that the amount of liquor served to him at that time proximately caused the collision over three hours later. Further, we do not believe that reasonable minds could conclude from any evidence before the court on the motion for summary judgment that Stilgenbauer was a known habitual drunkard.
Hence, we do not reach the question of law that we believed was involved in this case at the time we allowed the motion to certify, i.e., whether there may be in this state a cause of action against a liquor vendor for damages proximately resulting from his negligent sale of intoxicating beverages to a known habitual drunkard. See Rappaport v. Nichols (1959), 31 N.J. 188, 156 A.2d 1, 75 A.L.R. 2d 821; Farmers Mutual Auto Ins. Co. v. Gast (1962), 17 Wis.2d 344, 117 N.W.2d 347; Elder v. Fisher (Ind. 1966), 217 N.E.2d 847; Jardine v. Upper Darby Lodge (1964), 413 Pa. 626, 198 A.2d 550; Ramsey v. Antcil (1965), 106 N.H. 375, 211 A.2d 900; and 9 Cleveland Marshall Law Review 302 (1962). Therefore, we express no opinion on that question of law.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, DUFFY, HERBERT, SCHNEIDER and BROWN, JJ., concur.
DUFFY, J., of the Tenth Appellate District, sitting for MATTHIAS, J.