Mitchell v. Shoals, Inc.

Stevens, J.

The facts are fairly stated in the dissent, so will not be repeated at length. The testimony of the plaintiff— while, perhaps, susceptible to an inference of further drinks, after her fifth drink — is limited by her statement, “ Nothing that I know of ” in response to the question “ [ajfter the fifth one, what did you have to drink? ” All of the testimony is agreed that plaintiff fell asleep at the table in the cafe, and that she was removed, still sleeping, and placed in the Taylor car. There is no testimony or claim that plaintiff at any time purchased or paid for the drinks consumed by any members of the party and especially Taylor.

Section 16 of the Civil Rights Law provides, in part: ‘ ‘ Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.” Under the language of this section, the right of action springs from the wrong of unlawful selling to an intoxicated person or unlawfully assisting in or procuring liquor for the intoxicated person causing the injury complained of. The section must be read in conjunction with subdivision 2 of section 65 of the Alcoholic Beverage Control Law which prohibits the sale or giving of liquor to any intoxicated person, or to any person actually or apparently under the influence of liquor (Kinney v. 1809 Forest Ave., 7 Misc 2d 1; 2 N. Y. Jur., Alcoholic Beverages, § 116).

From the language of the statute conferring the right, it appears that it was intended to prevent unlawful sales of liquor and to provide a remedy for injuries occasioned by one who was instrumental in wrongfully producing or wrongfully causing such intoxication (cf. Mead v. Stratton, 87 N. Y. 493, 496). The language “ any person ” is clear and explicit and in the context in which it appears is limited to “ a third party injured or killed by the intoxicated person, by reason of his intoxication.” (Moyer v. Lo Jim Cafe, 19 A D 2d 523, affd. on other grounds 14 N Y 2d 792.) A third person who unlawfully sold or unlawfully assisted in procuring the liquor is barred because he participated actively as a contributing factor in producing the condition from which the injuries flowed. To extend the limitation to persons in the company of the intoxicated persons who neither purchased, assisted in purchasing, nor sold the liquor under the maxim volenti non fit injuria is a misapplication of the rule. Moreover, this plaintiff, from all of the evidence, was asleep or in a condition in which she could not freely exercise her independent will to accept or reject the proffered transportation.

Nor is this the case where two or more persons are engaged in a drinking bout, each sharing the expense, and each contributing to the intoxication of the other. To hold that merely being with and drinking in the company of an intoxicated person who later causes harm because of such intoxication, is sufficient to bar recovery, under the theory that such person is not an innocent suitor but a guilty participant, nullifies the remedial objective of the statute. It raises the question of how immediate must the company be in order to warrant denial of recovery. General patrons of a bar injured by an intoxicated patron whose intoxication causes injuries to them would hardly be denied recovery merely because of their status as patrons (cf. Tyrell v. Quigley, 186 Misc. 972; Kinney v. 1809 Forest Ave., 7 Misc 2d 1, supra; 2 N. Y. Jur., Alcoholic Beverages, § 116).

In James v. Wicker (309 Ill. App. 397), cited by appellant, the factual situation was slightly different. Moreover, plaintiff knowingly and willingly entered the accident car after engaging in extended drinking with defendant and others. The case was tried on the theory of contributory negligence as a bar to recovery; and the court, in effect, held that plaintiff’s own conduct contributed to bringing about the injuries. Also, the Illinois statute as quoted in that case, does not seem to require an unlawful giving or sale as does the New York statute. In this jurisdiction, it is not the mere sale which is forbidden, but the unlawful sale, causing or contributing to the intoxication which proximately causes the injury for which recovery is sought.

The facts and circumstances of this case afford no basis for a conclusion that plaintiff is guilty of complicity in the wrongful conduct of the bartender.

The judgment appealed from should be affirmed, with costs and disbursements to respondent.