Yost Ex Rel. Yost v. State , 1981 Utah LEXIS 879 ( 1981 )

HALL, Chief Justice:

Defendant Chris L. Petersen (hereinafter “Petersen”) appeals the judgment of the district court, sitting without a jury, which found him liable for injuries sustained in an automobile accident based on his negligence in selling alcoholic beverages to a minor.

The believable facts giving rise to the instant dispute are as follows. At about noon on August 31, 1976, defendant Ham-mon drove his pickup truck to Clearfield High School where he encountered two friends who were students there — plaintiff Yost and one Ronald Sills. On said date, all three individuals were minors: Hammon (age 18), Yost (age 16) and Sills (age 15). Yost and Sills decided to cut school and to go with Hammon to Ogden Canyon.

After leaving the high school, they stopped at defendant Sacco’s business establishment where Hammon purchased two six-packs of beer. The three opened the beer and began to consume it while enroute to the Clearfield State Liquor Store. On their arrival at the liquor store, Hammon went in and purchased five “fifths” of wine. Thereafter, they stopped at an Arctic Circle where they procured ice and cups. They then proceeded north toward Ogden, stopping enroute at defendant Quick Stop’s drive-in window where Hammon purchased two more six-packs of beer. Some, of the liquor was stored on ice in a box in the back of the truck although all three continued to drink while proceeding toward Powder Mountain Resort in Ogden Canyon via the North Ogden Divide. As the truck was moving, Yost made several trips in and out of the side window of the truck to procure more liquor from the box in the back of the truck. By the time they had reached the area known as Snow Basin, they had consumed all 5 bottles of wine and all 24 cans of beer.

They then proceeded on toward Powder Mountain, stopping enroute at Petersen’s business establishment for gas and more beer. While Yost filled the truck’s tank with gasoline, Hammon and Sills went into the store. They were waited on by a woman who sold Sills a bag of potato chips and Hammon two or three six-packs of beer. The court found that the boys were obviously intoxicated at the time of this purchase.

The three then proceeded some 12 miles to Powder Mountain Resort as they drank more beer. The truck was seen at the resort skidding around in the parking lot, with one boy (Yost) standing in the bed of the truck dressed only in his underwear. As they left the resort area, Hammon apparently blacked out and the truck rolled down an embankment. As the truck rolled, Yost was thrown clear of the truck¹ and suffered a severe spinal injury which left him permanently paralyzed. The complaint was filed on August 30, 1977.

Prior to trial, defendants filed motions for summary judgment seeking, inter alia, a determination that there can be no cause of action against one who furnishes liquor in favor of those injured by the intoxication of the person so furnished.² The trial court properly refused to adopt by judicial fiat remedies commonly available under so-called “civil damage” or “dram-shop” acts.³ Nevertheless, the court denied the motions for summary judgment on the basis that the unlawful sale of liquor to a minor may be considered in apportioning negligence.⁴ Such ruling is consistent with the common law,⁵ as well as with the recent pronouncement of this Court in Rees v. Albertsons.⁶ In Rees, we reversed the summary judgment entered by a lower court and held that a minor is entitled to have a determination as to both the misconduct of the seller from whom he purchased beer and the foreseeability that such sale would result in an injury of the same general nature as that which occurred.

After hearing the evidence adduced at trial, the trial judge determined that the negligence which caused Yost’s injuries was to be apportioned as follows:

Hammon 80%

Petersen 10%

State 5%

Yost 5%

Only Petersen appeals.⁷

On appeal, Petersen first contends that Yost’s complaint did not state a cause of action against him, inasmuch as he is not the owner or operator of the premises known as Chris’s.⁸ In his answer, Petersen alleged that “he is not the proper party in interest.” There is a serious question as to whether such allegation has preserved the issue now asserted on appeal because of the ambiguity of the allegation. By claiming that he was not “the proper party in interest,” he could reasonably have meant that it was Hammon, and not Petersen, who caused the accident. Indeed, at trial after Yost had rested, Petersen moved for what he termed “summary judgment” alleging that the accident was proximately caused by Hammon’s driving and not by Petersen's sale of beer. There was never a motion to dismiss made on the ground asserted on appeal; hence, Petersen should not be heard to claim for the first time on appeal that he is not the owner or operator of Chris’s.⁹

Notwithstanding the foregoing procedural flaw in Petersen’s first contention, nevertheless the record and transcript before us contain sufficient evidence to establish that Petersen was the owner or operator of Chris’s. Prior to trial, Petersen filed a motion for summary judgment and an affidavit in support thereof. The affidavit was signed by one Bob Brown, who stated that he was “employed by the named Defendant [Petersen] on August 31, 1976, at the place of business in Huntsville, Utah, known as Chris’s” and that he worked on the day of the alleged sale. Contrary to the conclusion reached by the dissent, under the facts peculiar to this case, the Brown affidavit is properly to be viewed as part of the record upon which the decision was based. This is to be seen in that the affidavit in question was presented to the same judge that subsequently tried the case, sitting without a jury. Had the case been heard by a jury, it would, of course, have been necessary to place the affidavit in evidence in order to apprise the jury thereof. Furthermore, Carol Petersen testified at trial that she worked at “our family business” known as Chris’s, and that she was working on the afternoon of August 31, 1976. Such evidence is collectively sufficient to establish that Petersen is a “proper party in interest.”

Petersen next challenges the court’s apportionment of negligence among the parties. Specifically, he contends that his negligence was assessed too high and that it was also error not to assess the negligence of Quick Stop and Sacco as parties. We deem these contentions to be ill-founded.

Although Quick Stop was served with summons and a copy of the complaint, no responsive pleading was filed, no appearance was otherwise entered, and no one, including Petersen considered Quick Stop as a party, either at trial or on appeal.¹⁰ Rule 14, U.R.C.P., permits a defendant to bring into the lawsuit another person “who is or may be liable to him for all or part of the plaintiffs’ claim against him.” Also, Rule 13, U.R.C.P., provides that a pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. In the instant case, Petersen did not see fit to pursue either procedure.

Prior to trial, summary judgment was entered dismissing Sacco as a party. Although Petersen now attempts to challenge the propriety of that judgment, no appeal therefrom was ever perfected. Even assuming, arguendo, that the summary judgment is part of this appeal, nevertheless, we are without jurisdiction to rule upon the matter.

Rule 73, Utah Rules of Civil Procedure provides, in pertinent part that “[a] party may appeal from a judgment by filing with the district court a notice of appeal, together with sufficient copies thereof for mailing to the Supreme Court and all other parties to the judgment.”¹¹ The rule further provides that “[njotification of the filing of the notice of appeal should be given by the appellant serving a copy thereof on all the-parties to the judgment.¹² Without such notice having been given, this Court is without jurisdiction to hear the matter.¹³ In Gill v. Tracy,¹⁴ the Court held as follows:

The rule, which is well established in this state, is that it is incumbent upon appellants in order to confer jurisdiction on this court to serve the notice of appeal on all parties to the action not joining as appellants who may be adversely affected by either a modification or a reversal of the judgment.¹⁵

The notice of appeal and ⅝11 other pertinent., appeal documents were served only upon Yost and the State. Sacco was therefore not made a party to this appeal, has not otherwise entered an appearance, and his interests have not been represented. Consequently, this Court is without jurisdiction to consider the propriety of the summary judgment.

In any event, the liability of the various tort-feasors being joint and several,¹⁶ the percentage of negligence attributable to each of them does not affect Petersen’s liability because his negligence was found to be greater than that of Yost.¹⁷ Regardless of the percentage of liability attributable to Petersen relative to the other defendants, he is liable for Yost’s total damage, reduced by: 1) the percentage of negligence attributed to Yost,¹⁸ and 2) the greater of the amount of the consideration paid by Hammon for his release, or the amount, if any, by which the release provides that the total claim shall be reduced.¹⁹

The issue of contribution among joint tort-feasors ²⁰ not having been litigated below, it was not incumbent upon the trial court to compare the relevant faulty conduct of those tort-feasors not joined, treated or considered as parties at trial.

Clearly, the apportionment of negligence among the remaining parties (Ham-mon, Petersen, State, and Yost) is a factual matter best left to the trial court’s determination. The record adequately supports the trial court’s apportionment of negligence. It was undisputed that all three of the boys drank liquor on a regular basis and had done so for years. They had all had training in automobile safety and understood the dangers of drinking and driving. It was also undisputed that none of the persons who sold the beer and wine to Hammon asked him for identification. Sills and Yost testified that on the day of the accident Hammon had a beard and that he looked to be over 21 years; nevertheless, based on its own observations, the court specifically found that on the date in question Hammon would have appéared even younger than his actual age of 18. The court attributed greater fault to Petersen than the State for several specified reasons. The sale by Petersen was not only to a minor, but to an obviously intoxicated minor who logically might be expected to drink as he drove down a canyon road.

The findings and judgment of the lower court are hereby affirmed. No costs awarded.

HOWE and OAKS, JJ., concur. MAUGHAN, J., heard the arguments, but died before the opinion was filed.

1 . Yost claims to have been in the cab of the truck at the time of the accident, having again crawled from the back through the side window.

2 . The reason usually given for this general rule at common law is that the drinking of the liquor, and not the furnishing of it, is the proximate cause of the injury. See 45 Am.Jur.2d, Intoxicating Liquors, § 553 and cases cited therein.

3 . By legislative enactment, several states have seen fit to provide for a right of action against the person who furnishes the liquor which caused the intoxication. Indeed, the State of Utah has since enacted such a statute; see U.C.A., 1953, 32-11-1, et seq., effective May, 1981.

4 . U.C.A., 1953, 32-7-15. A comparable situation would be the unlawful sale of liquor to a drunken person. U.C.A., 1953, 32-7-14.

5 . See 45 Am.Jur.2d, Intoxicating Liquors, § 555.

6 . Utah, 587 P.2d 130 (1978).

7 . There is no basis for this Court to address the points raised by the State and by Yost (other than in response to Petersen’s claims) inasmuch as no cross-appeals were filed pursuant to Rule 74(b), U.R.C.P.

8 . Petersen claims that during the course of the trial Yost offered no evidence whatsoever as to the ownership of the premises. In support of his contention on appeal that he was not the owner or operator of Chris’s, Petersen attaches to his brief an affidavit of his wife, Carol Petersen. Inasmuch as the affidavit was not presented to, nor considered by, the court below, we do not consider it here.

9 . See, e.g., Collier v. Frericks, Utah, 626 P.2d 476 (1981).

10 . As to Quick Stop’s status as a party on appeal, see analysis of Rule 73, infra.

11 . Rule 73(a), U.R.C.P.

12 . Rule 73(b), U.R.C.P.

13 . Griffin v. Southern Pac. Co., 31 Utah 296, 87 P. 1091 (1906); Anderson v. Halthusen Mercantile Co., 30 Utah 31, 83 P. 560 (1906).

14 . 80 Utah 127, 13 P.2d 329 (1932).

15 . Id., 80 Utah at 130, 13 P.2d 329; see also, Wasatch Livestock Loan Co. v. Jones, 79 Utah 352, 10 P.2d 1070 (1932); Langton Lime & Cement Co. v. Peery, 48 Utah 112, 159 P. 49 (1916).

16 . That joint tort-feasors remain severally liable to the injured person for the whole injury as at common law, see U.C.A., 1953, 78-27-40(2).

17 . U.C.A., 1953, 78-27-37.

18 . Id.

19 . U.C.A., 1953, 78-27 — 42.

20 . Provided for by U.C.A., 1953, 78-27-39 through 43.