concurring in part and dissenting in part.
I agree that the judgment against the plaintiff and in favor of Southland Corporation should be affirmed.
I am not willing to accept Carver v. Schafer, 647 S.W.2d 570 (Mo.App.1983), as the “common law” of Missouri. As the principal opinion points out, there was no application for transfer in that case. I would reject the suggestion that there is a common law in the Eastern District, which may differ from the common law of the state. The point ruled in Carver is an open one, so far as we are concerned.
It is significant that, in the many years of our history, the courts have not imposed liability on the purveyors of liquor by the drink for the subsequent behavior of their patrons. I give no weight to the arcane case of Skinner v. Hughes, 13 Mo. 440 (1850), as establishing a rule of current application.
The legislature has no proper office in defining the common law rules for application to existing claims, but the signals from the repeal of the dram shop law, Section 4487, RSMo 1929, by L. 1933-1934, p. 77, provide very clear indications, first, that the legislature considered that a statute was necessary to impose civil liability on the seller of liquor by the drink, and, second, that a later legislature determined that there should be no such liability. This statutory history demonstrates quite clearly, moreover, that Section 311.310, RSMo 1986, was not intended to afford a civil action.
I see no compelling need to recognize a common law cause of action which has never been recognized by a decision of this Court, and which has been barred from future application by the express terms of Section 537.053, RSMo 1986. I would affirm the judgment in its entirety.