Zona Marie Meade v. John E. Freeman

This case arrives here procedurally as a result of the dismissal of the complaint of plaintiffs-appellants. Defendants Arana
and Celestine moved for summary judgment. The court construed the motion as one for dismissal (I.R.C.P. 12(b) (6)) and issued
a memorandum decision and order of dismissal. The dismissal did not apply to defendant Freeman and the case is in abeyance
as to him, pending the outcome of this appeal. Appellants assign such dismissal as error. For the purposes of the motion and
this appeal, it is axiomatic that the well pleaded allegations of the complaint are deemed admitted. Walenta v. Mark Means
Co., 87 Idaho 543, 394 P.2d 329 (1964). The material allegations of the complaint in substance are: Arana and Celestine are owners and operators of premises licensed
for the retail sale of liquor and located in Garden City, Idaho. The defendant Freeman entered the premises while he was obviously,
actually and apparently intoxicated. The defendants, either personally or through employees, served liquor to Freeman, well
knowing or having good reason to know that Freeman upon leaving the premises would drive an automobile upon the highway. Freeman
departed the premises and while still intoxicated negligently caused and was involved in an automobile accident in which one
Meade was killed. Plaintiffs are the surviving widow and children of Meade and bring the action under the authority of Idaho's
wrongful death statute, I.C. § 5-311. The serving of liquor to Freeman while he was intoxicated was in violation
of our criminal statute. I.C. § 23-929.