NO. 209 APRIL TERM, 1977, Appeal from the Judgment of the Court of Common Pleas of Beaver County Pennsylvania, Civil Division at No. 1962 of 1974
Robert L. Orr, Beaver, for appellants.
Edward J. Balzarini, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.
[ 251 Pa. Super. Page 523]
This is a wrongful death and survival action filed by the administratrix of Michael J. Connelly, Jr. who died as a result of an accident which occurred on December 24, 1973. His administratrix, the appellee, sued the owners of a tavern where the decedent had been drinking during the afternoon and evening of the accident. The tavern owners joined as an additional defendant an individual who owned the home where the accident occurred, but that individual was exonerated by the jury. During the course of the trial the original defendants made a timely motion for binding instructions which was denied. The jury returned a verdict in the amount of $60,000 in favor of the administratrix-appellee against the original defendants-appellants. The appellants filed a post-trial motion for a judgment non obstante veredicto which was denied by the court en banc. Judgment was entered for the appellee and the appellants have appealed, contending, as they did before the court en banc, that the evidence was not sufficient to justify a submission of the case to the jury. They ask for a judgment n. o. v., not a new trial.
In determining the propriety of a judgment n. o. v., the controlling question is, would binding instructions for the appellants have been proper at the end of the trial; and in deciding that point, the evidence must be read in the light most favorable to the appellee, the latter being given the benefit of every fact and inference of fact pertinent to the issues which might legitimately be drawn from the evidence: Smith v. Standard Steel Car Co., 262 Pa. 550, 552-3, 106 A. 102 (1919). See also Dalmas v. Kemble, 215 Pa. 410, 412-13, 64 A. 559 (1906) for an historical explanation of our judgment n. o. v. procedure.
[ 251 Pa. Super. Page 524]
The appellee's right of recovery is premised upon that portion of the Pennsylvania Liquor Code, 47 P.S. 4-493, which provides that:
"It shall be unlawful for any licensee . . . or any employee, servant or agent of such licensee, . . . or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated . . ."
As a consequence of that statute, if a tavern keeper serves intoxicating liquor to anyone who is in a visible state of intoxication, he violates the law, and, if as a result of such intoxication the consumer of the intoxicants injures someone else or himself, the tavern keeper is liable in tort: Smith v. Evans, 421 Pa. 247, 249, 219 A.2d 310 (1966).
The appellee's burden of proof was twofold, requiring (1) evidence sufficient to sustain a finding that an employee of appellants had served liquor to the decedent while he was visibly intoxicated; and (2) evidence sufficient to sustain a finding that the decedent's intoxication was a contributing cause of his death.
The evidence on both issues is essentially undisputed. Concerning service of liquor to the decedent while visibly intoxicated, we start with the testimony of both the bartender in the appellants' tavern and the drinking companion of the decedent that the decedent and his drinking companion were in the appellants' bar on December 24, 1973, from approximately 1 P.M. until closing time at about 9 P.M. with the exception of about one hour between 5:00 and 6:00 P.M. when they were absent from the bar on an errand. The same witnesses testified that during this period of approximately seven hours that the decedent was in the appellants' bar ...