Appeal from judgment of Court of Common Pleas of Beaver County, March T., 1963, No. 258, in case of Kenneth Majors v. Brodhead Hotel.
John D. Ray, with him Ray & Good, for appellant.
Charles M. Barrickman, with him James B. Ceris, and Wallover and Barrickman, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell and Mr. Justice Jones dissent.
This is an appeal from the judgment of the lower court entered after overruling defendant-appellant's motions for judgment n.o.v. or for a new trial.
The undisputed facts are as follows. At approximately ten o'clock p.m., on March 10, 1962, plaintiff, who was sober at that time, and his wife went to a ballroom on the sixth floor of defendant's hotel to attend a dance sponsored by the Optomist Club of Beaver Falls. The club provided the band. The defendant provided the space, bartenders, and waitresses and sold alcoholic beverages by the bottle and the drink directly to the persons attending the dance. The club paid a fee to the hotel, the amount decreasing in inverse proportion to the amount of liquor sold. By and large, bottles were sold to groups at tables, where "set-ups" were provided, and individual drinks were sold at a bar adjoining the ballroom. Between ten o'clock p.m. and two o'clock a.m. four or five "fifths" of liquor were sold to the group of twelve people at plaintiff's table. Plaintiff spent very little time at his table after midnight. By two o'clock a.m. plaintiff had become exceedingly inebriated. At about that time plaintiff, who was causing a commotion in the men's bathroom, was confined there for the purpose of keeping him out of trouble while the patrons were
leaving, the dance being over. But plaintiff crawled through a window in the bathroom that led out onto a roof adjoining the sixth floor of defendant. Plaintiff proceeded quite a few feet along a cyclone fence which enclosed the roof until he came to an opening in the fence. He went through the opening, out onto a ledge and, from there, fell or jumped some forty-five feet onto the roof of defendant's kitchen below and was injured.
Plaintiff's case was tried upon the theory that defendant's liability rested upon the serving of liquor to plaintiff while he was visibly intoxicated in violation of the "Liquor Code" which provides that it shall be unlawful "[f]or any licensee . . . or any employe, servant or agent of such licensee . . . to sell, furnish or give any liquor . . . to any person visibly intoxicated. . . ." 1951, April 12, P. L. 90, § 493(1), 47 P.S. § 4-493(1).
This provision was, in part, intended to protect the interest of another as an individual. Also, the interest of the plaintiff which was invaded here was one which the act intended to protect. Accordingly, in cases such as this, we have held that a violation of this statute is negligence per se and, if the violation was the proximate cause of plaintiff's injury, defendant is liable for it. Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 198 A.2d 550 (1964); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); Schelin v. Goldberg, 188 Pa. Superior Ct. 341, 146 A.2d 648 (1958); Restatement, Torts, § 286. See also Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960).
In the case at bar there was no evidence that defendant served plaintiff at his table while visibly intoxicated. However, there was clear and direct evidence, although it was contradicted, that plaintiff was served one drink at the bar at about 12:30 ...