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SMITH v. EVANS (05/02/66)

decided: May 2, 1966.

SMITH
v.
EVANS, APPELLANT



Appeals from judgment of Court of Common Pleas of West-moreland County, April T., 1959, No. 279, in case of David A. Smith and William Claney Smith v. Leon H. Evans, trading and doing business as Mission Inn, and Marshall J. Policicchio and Vincent LaMonica, trading and doing business as V & M Bar.

COUNSEL

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

M. R. Stabile, Jr., with him Dennis C. Harrington, and McArdle, Harrington, Feeney & McLaughlin, for appellee.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones concurs in the result. Dissenting Opinion by Mr. Justice Cohen.

Author: Musmanno

[ 421 Pa. Page 248]

This case has already been before us in Smith v. Clark, 411 Pa. 142, so that there is no necessity to repeat the details of the accident which was the basis for the trespass action instituted by the plaintiffs against the defendants. Suffice it to say that the minor plaintiff David A. Smith charged the defendants with serving him, a minor, intoxicating liquors while he was

[ 421 Pa. Page 249]

    in a state of visible intoxication, and that the intoxication resulted in an accident from which he emerged considerably injured. At the first trial the jury returned a verdict for the minor plaintiff and his guardian ad litem in the total sum of $59,000. The defendants appealed and a new trial was ordered on the ground that the judge's charge did not sufficiently distinguish between the factors of the minor's age and his state of inebriety.

The case was retried and the record reveals that the trial court stayed within the guidelines laid down by this Court's instructive decision. This time the jury returned a verdict in favor of the plaintiffs in the total sum of $27,997.31. The defendants have appealed, asserting again that the trial court charged erroneously. With all its mutations, the law has not changed since we rendered our decision on April 26, 1963, and what was the law then, is the law today. If a tavern keeper serves intoxicating liquors to anyone in a visible state of intoxication, he violates the law, and, if as the result of such intoxication, the consumer of the intoxicants injures someone else or himself, the tavern keeper is liable in tort. The trial court here so charged the jury.

The appellants complain because the trial court refused to affirm their point for charge which read: "Even if David A. Smith, a minor, was served alcoholic beverages by one or both defendants in this case, this accident did not occur because he was a minor, or because, as a minor, he had been served some intoxicants. Therefore, I instruct you, as a matter of law, that Smith's being a minor cannot be considered by you as the basis for liability on the part of the defendants."

The refusal of the trial court to approve this point was a prudent one. The first sentence of the point is distinctly objectionable because, to affirm it, would have meant that the trial court had definitively and factually

[ 421 Pa. Page 250]

    concluded that the accident did not occur because the minor plaintiff had been served intoxicants. Such an affirmance would have invaded the province of the jury which had the responsibility of deciding whether the minor was ...


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