Nesbitt v. Westport Square, Ltd.

624 S.W.2d 519 (1981)

Julie L. NESBITT, Appellant, v. WESTPORT SQUARE, LTD., Respondent.

No. WD 32257.

Missouri Court of Appeals, Western District.

November 3, 1981.

Charles C. Shafer, Jr., Kansas City, for appellant.

Frank P. Barker, Barker, Rubin & Sonnich, Kansas City, for respondent.

Before TURNAGE, P. J., and PRITCHARD and CLARK, JJ.

TURNAGE, Presiding Judge.

Julie Nesbitt brought suit against Westport Square Ltd., d/b/a The Prospect, for injuries she received while riding in an automobile driven by Susan Sperry. The petition alleged Sperry was 18 years of age at the time and had been served intoxicating liquor at The Prospect in violation of § 311.310, RSMo 1978. The petition alleged the accident was the proximate result of Sperry's intoxication.

The trial court sustained a motion to dismiss for failure of the petition to state facts upon which relief could be granted. On this appeal Nesbitt contends the petition did state a cause of action under Sampson v. W. F. Enterprises, Inc., 611 S.W.2d 333 *520 (Mo.App.1980), which was decided after the petition was dismissed. Reversed and remanded.

In Sampson this court held that a petition which alleged that the plaintiff's son had been served intoxicating liquor at two taverns in violation of § 311.310 stated a cause of action for the death of the son resulting from his errant driving because of the intoxication. The only difference between the facts in Sampson and those here is that Sampson involved injuries to the minor who had been illegally served intoxicants, while in this case Nesbitt rests her claim on the negligence of Sperry who, as a minor, had been served intoxicants. Sampson relied on the reasoning in Moore v. Riley, 487 S.W.2d 555 (Mo.1972). Moore involved injuries inflicted by a minor on a third person. While the petition in Moore did not allege that the minor had been illegally served intoxicants in the tavern, this court in Sampson relied on the language found in Moore which indicated that had the petition alleged the illegal sale of liquor to the minor, a cause of action would have been stated on that ground. For the reasons fully articulated in Sampson the petition in this case did state facts on which relief could be granted based on the illegal sale of intoxicants to the minor Sperry.

The judgment is reversed and the cause remanded for further proceedings.

All concur.