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SMITH v. CLARK (04/26/63)

April 26, 1963

SMITH
v.
CLARK, APPELLANT.



Appeals, Nos. 32, 33, 34 and 35, March T., 1963, from judgments of Court of Common Pleas of Westmoreland County, April T., 1959, No. 279, in case of David A. Smith, a minor, et al. v. Leon H. Evans et al. Judgments reversed.

COUNSEL

Myron W. Lamproplos, with him Cassidy & Lamproplos, for appellants.

Dennis C. Harrington, with him Paul F. Laughlin, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Eagen

[ 411 Pa. Page 144]

OPINION BY MR. JUSTICE EAGEN

The plaintiff, David A. Smith, at the age of nineteen years, was seriously injured when an automobile he as operating left the roadway of State Highway Route 981, near the Borough of Latrobe, Pennsylvania, in the early morning hours of May 14, 1957. This action for damages followed. The defendants are the owners of separate business places where intoxicating alcoholic beverages are sold to the public. The complaint is based upon the allegation that shortly before the accident, the defendants sold alcoholic beverages to the minor plaintiff, who was visibly intoxicated at the time and that these unlawful acts were the proximate cause of the accident. The jury returned substantial verdicts in favor of the plaintiffs. A new trial was refused and these appeals from the judgments followed.

Certain trial errors require the grant of a new trial.

The Act of 1951, P.L. 90, 146, § 493(1), 47 P.S. § 4-493, inter alia, makes it unlawful for any licensee to sell or furnish any liquor or malt or brewed beverages to a minor or to a visibly intoxicated person. That the serving of intoxicants to minors or to visibly intoxicated persons are separate and distinct violations, there can be no doubt. If the intoxicating beverages are sold in violation of this statute, this constitutes negligence, and if the unlawful act or acts are the proximate cause of an injury, the violator is responsible in damages for the loss suffered: Schelin v. Goldberg, 188 Pa. Superior Ct. 341,

[ 411 Pa. Page 145146]

A.2d 648 (1958). See also, Manning v. Yokas, 389 Pa. 136, 132 A.2d 198 (1957); McKinney v. Foster, 391 Pa. 221, 137 A.2d 502 (1958). These last cited decisions involved the Act of May 8, 1854, P.L. 663, which has since been repealed.

In the present case, the sale of intoxicants to a young man, then nineteen years of age, was a violation of the Act of 1951, supra. There was also ample evidence to sustain a finding by a jury that the minor was served intoxicating beverages, although he was already visibly intoxicated. If true, this was a second and separate violation of the law. However, for these violations, or either one of them, to render the defendants civilly liable in this case, the violation or violations must necessarily be the proximate cause of the accident involved.

As we read the testimony, the plaintiffs' proof herein established that the cause of the accident was the minor plaintiff's intoxication, or at least that he was under the influence of intoxicants and, ...


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