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CHARLES L. BRYANT, CAROLYN B. BRYANT AND KIMBERLY ANN BRYANT KENDRICK v. ALPHA ENTERTAINMENT CORPORATION

MAY 27, 1987

CHARLES L. BRYANT, CAROLYN B. BRYANT AND KIMBERLY ANN BRYANT KENDRICK
v.
ALPHA ENTERTAINMENT CORPORATION



BEFORE ROY NOBLE LEE, P.J., SULLIVAN & GRIFFIN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

The parents and sister of Dinah Kay Bryant brought suit against Alpha Entertainment Corporation in the Circuit Court of Lamar County, Mississippi, seeking damages for the wrongful death of Dinah Kay Bryant. The jury returned a verdict in favor of Alpha Entertainment Corporation and the Bryants appeal to this Court.

On June 11, 1983, Dinah Kay Bryant and Kevin King, both under 18 years of age, went to a bar in Hattiesburg, Mississippi, owned by Alpha Entertainment Corporation and known as" Cash McCool's. "The two teenagers gained admittance to the bar. Kevin testified that he purchased and drank four to six" long-neck "beers. When the couple left Cash McCool's to return to Columbia in a car borrowed by Kevin, Kevin hit a bridge abutment in Lamar County, Mississippi. As a result, the injuries caused by this accident led to the death of Dinah Kay Bryant. The action was predicated on the sale of beer to the driver of the vehicle, Kevin King, a minor, under 18 years of age.

 Jimmy Stringer and Wayne Cameron, both Mississippi Highway Patrolmen, testified that in their opinion Kevin King was visibly intoxicated when they arrived at the scene of the accident. Some three hours after the accident blood was taken from Kevin King pursuant to 63-11-7, Mississippi Code Annotated (1972), and an analysis indicated an alcoholic content of .14%. Mississippi law provides that a blood alcohol content of .10% is an indicator of legal intoxication. Section 63-11-39, Mississippi Code Annotated (1972), as Amended. There was a dispute as to the question of intoxication, but the trial court did not permit the jury to receive evidence of Kevin's blood alcohol content, although Kevin was not a party to the action and did not object to the introduction of the evidence and waived the protection provided in the statute.

 The record shows that Kevin used an obliterated driver's license which did not show his age and a renewal slip filled out in his own handwriting by him as identification to prove his age and enter Cash McCool's. Dinah Kay Bryant had brown eyes and brown hair but she was allowed entrance in Cash McCool's using an ID of someone else who had green eyes and brown hair. From the record an employee of Cash McCool's admitted her to the bar with a joking comment" she had green hair and brown eyes. "

 Danny Rigel, former security guard for Cash McCool's, testified that if someone else was admitted with a driver's license that had obviously been changed, then a mistake had been made. Alpha Entertainment contends that the Bryants

 had a duty to prove a lack of reasonable care by Alpha's employees and the trial court imposed the reasonable care burden on the Bryants and did not allow them a negligence per se instruction.

 I.

 IS THE SALE OF BEER TO A MINOR UNDER 18 YEARS OF AGE NEGLIGENCE PER SE?

 The Bryants requested and were refused instruction No. P-1 which was the negligence per se instruction against Alpha Entertainment.

 The Bryants also requested instruction No. P-10 which was refused. Instruction No. P-10 instructed the jury that if they found that the negligence of Alpha Entertainment caused or contributed to the accident that led to the death of Dinah Kay Bryant, then it was their duty to return a verdict for the plaintiffs.

 The Bryants also requested instruction No. P-11 which told the jury that if they found from the evidence that Alpha Entertainment sold beer to Kevin King and that Kevin King was under eighteen (18), then Alpha was guilty of negligence and if the jury further found that this negligence proximately caused or contributed to the accident resulting in the death of Dinah Kay Bryant, then the jury should return a verdict for the plaintiffs.

 All three of these instructions were refused by the trial court which granted instead Alpha Entertainment's instruction No. D-3, which in essence instructed the jury that the Bryants had to prove by a preponderance of the evidence that Alpha Entertainment had failed to exercise reasonable care in order for Alpha Entertainment Corporation to be negligent. The Bryants offered two additional instructions when their negligence per se instructions were refused. These instructions were granted by the trial judge though he placed the burden upon the Bryants to prove both negligence and causal connection.

 Section 67-3-53, Mississippi Code Annotated (Supp. 1986), provides:

 [Until September 30, 1986, this section will read as follows:]

 In addition to any act declared to be unlawful by this chapter, or by ...


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