Appeal, No. 19, March T., 1957, from judgment of Court of Common Pleas of Butler County, Sept. T., 1956, No. 56, in case of Charles C. McKinney, Jr., administrator of the estate of Charles C. McKinney, III, v. James W. Foster et al. Judgment n.o.v. reversed.
Wills A. MacDonald, for appellant.
John L. Wilson, for Paul J. Besnecker, appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This trespass action was brought by the administrator of the Estate of Charles C. McKinney, III against James W. Foster, the 19 year old operator of an automobile that crossed over the opposite lane of a highway striking and fatally injuring McKinney who was walking along the berm, and against Paul J. Besnecker, the proprietor of a restaurant at which Foster had been served beer on the evening of the accident. The jury made a special finding that Foster was under the influence of intoxicants at the time of the accident, and brought in verdicts amounting to $6,000 against both defendants.
Both defendants moved for a new trial, and the defendant Besnecker also moved for judgment n.o.v. The trial court granted the judgment n.o.v. as to the defendant Besnecker, refused the motions for new trial, and entered judgment in favor of the defendant Besnecker, and in favor of the plaintiff against the defendant Foster. The plaintiff brings this appeal from the entry of judgment n.o.v. in favor of Besnecker. The defendant Foster has not appealed.
The action against Besnecker was founded on the Act of May 8, 1854, P.L. 663*fn1 which provided: "Section 3. That any person furnishing intoxicating drinks to any other person in violation of any existing law, or of the provisions of this acts, [sic] shall be held civilly responsible for any injury to person or property in consequence of such furnishing, and any one aggrieved may recover full damages against such person so furnishing by action on the case, instituted in any court having jurisdiction of such form of action in this Commonwealth." At the time of the accident it was, of course, illegal to sell intoxicants to a minor or to any person visibly intoxicated.*fn2
The action, filed in 1950, came on for trial in May, 1955 and the verdicts rendered on May 26, 1955. The opinion and order of the court below granting the judgment n.o.v. were filed on June 8, 1956, and although certiorari issued on September 12, 1956, this appeal was not heard until October 2, 1957.
We recite these dates to show that the judgment n.o.v. was entered, and this appeal taken, a year before our latest pronouncement on the Act of 1854 in the case of Manning v. Yokas 389 Pa. 136, 132 A.2d 198, handed down on May 29, 1957.
Manning v. Yokas was significant because, while many cases arising under the Act of 1854 had been heard by this Court during the past hundred years, Manning v. Yokas was the first to apply the Act to a situation where an accident occurred and the negligent driver of an automobile ...