Opinion
6-4-1954
COLE et al. v. RUSH et al.* L. A. 22864.
John C. Stevenson and Lionel Richman, Los Angeles, for appellants. Parker, Stanbury, Reese & McGee, Los Angeles, for respondent.
COLE et al.
v.
RUSH et al.*
June 4, 1954.
Rehearing Granted June 30, 1954.
Prior opinion, 262 P.2d 623.
John C. Stevenson and Lionel Richman, Los Angeles, for appellants.
Parker, Stanbury, Reese & McGee, Los Angeles, for respondent.
CARTER, Justice.
Plaintiffs, Dorothea Cole, the surviving widow of James Bernard Cole, deceased, and Joyce Elaine Cole and Kenneth Foye Cole, the minor children of the decedent, brought this action to recover damages for loss of comfort, support, etc., suffered by them because of the wrongful death of their husband and father. Defendant Frank Van Stone, individually, and doing business as Tropic Isle Cafe, demurred to plaintiffs' first amended complaint on the grounds that the complaint failed to state facts sufficient to constitute a cause of action against him; that the complaint showed, on its face, that the injuries complained of were caused and contributed to by the fault and negligence of the decedent; that it could not be determined in what manner any acts of the defendant constituted the proximate cause of the injuries; and that the complaint showed that the acts of the decedent were an intervening and superseding cause of the decedent's death. Upon plaintiffs' statement that they could not further amend, the trial court sustained the demurrer without leave to amend and judgment for defendant was entered thereon.
Plaintiffs alleged, in part, that defendant owned and operated an establishment known as the Tropic Isle where intoxicating liquors were sold to the public for consumption; that on October 13, 1950, James Bernard Cole was a patron of the Tropic Isle and that the defendant sold, furnished, etc., to James Bernard Cole, alcoholic beverages which Cole drank; that immediately prior to going on the defendant's premises, Cole was not intoxicated by reason of the use of any alcoholic beverage but that after he drank the beverages furnished to him at the Tropic Isle, he became intoxicated. It was further alleged that James Bernard Cole was a frequent patron of the Tropic Isle; that defendant well knew that Cole was normally of quiet demeanor but that when he became intoxicated he became belligerent, pugnacious and quarrelsome and that this was well known to the defendant; that prior to the date in question, plaintiff Dorothea Cole had requested defendant not to give, sell or furnish intoxicating beverages to James Bernard Cole in a sufficient quantity to allow him to become intoxicated but that defendant refused to accede to such request. It was alleged that because of such intoxication on the day in question and as a proximate result of the liquor sold to him, James Bernard Cole became belligerent, pugnacious and quarrelsome and engaged in fisticuffs with on Franklin Leonard; that James Bernard Cole was struck by Leonard and fell to the pavement, striking his head against the concrete, by reason of which he suffered a subarachnoid hemorrhage, traumatic, and died immediately. It was also alleged that at the time of his death, James Bernard Cole was an able-bodied man, 39 years of age, and was regularly engaged as a warehouseman earning $4,000 per year.
California has no civil damage, or Dramshop Act. Fleckner v. Dionne, 94 Cal.App.2d 246, 249, 210 P.2d 530. The question is whether, at common law, the surviving spouse and children of a decedent had a cause of action against one who, with notice, sold intoxicating beverages to a patron, and whether the selling, or the drinking, of the liquor was the proximate cause of the subsequent injuries.
Plaintiffs contend that the two California cases relied upon by defendant are distinguishable from the one under consideration.
In the case of Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952, 955, plaintiff alleged that while a patron of the bar, and in an obviously intoxicated condition, he was served intoxicating liquor as a result of which he fell from the movable stool on which he was sitting; that he was dragged from his position on the floor by the defendants, and as a result of which, he suffered a fracture and other injuries of the shoulder and body. He contended that the defendants, knowing his condition, negligently failed to take precautions to protect him. Plaintiff relied in part upon the Alcoholic Beverage Act, Deering's Gen.Laws, 1937, Act 3796, § 62, Stats. 1935, p. 1123, which makes it a misdemeanor to sell alcoholic beverages to an 'obviously intoxicated person'. The court held that it could not be said that the purpose of the act was to protect an obviously intoxicated person, as the act itself declared, section 1, that the purpose was to promote '* * * in the highest degree the economic, social and moral well-being and the safety of the State and of all its people'. It was also held that 'The principle that a violation of a statute or ordinance is negligence per se is subject to the limitation that the act or omission must proximately cause or contribute to the injury. Burtt v. Bank of California National Association, 211 Cal. 548, 296 P. 68; Lawrence v. Southern P. Co., 189 Cal. 434, 208 P. 966. Unless the alleged violation of the Beverage Act by defendants constituted the proximate cause of plaintiff's injuries such violation is wholly immaterial to a disposition of this appeal.' The court continued to state the 'general rule' as follows: 'Rather we find the general rule to be as stated in the case of Hyba v. C. A. Horneman, Inc., 302 Ill.App. 143, 23 N.E.2d 564, 565: 'The common law gave no remedy for the sale of liquor, either on the theory that it was a direct wrong or on the ground that it was negligence which would impose a legal liability on the seller for damages resulting from intoxication", and that the rule found support in the case of Lammers v. Pacific Electric Ry. Co., 186 Cal. 379, 199 P. 523, wherein the court held that the sale of intoxicating liquor is not the proximate cause of injuries subsequently received by the purchaser because of his intoxication. 'Therefore, in the absence of a showing to the contrary, the proximate cause is not the wrongful sale of the liquor but the drinking of the liquor so purchased.'
The case of Fleckner v. Dionne, 94 Cal.App.2d 246, 210 F.2d 530, 531, was an action brought, in part, against the owners of a tavern. It was alleged that these defendants had sold intoxicating liquors to one Dionne, a minor, knowing that he was already intoxicated and knowing that he would drive his car in an intoxicated condition which could, and would, result in harm to others using the highway; that Dionne, in an intoxicated condition, did drive his car so negligently and recklessly that he caused it to collide with the car in which plaintiffs were riding to their injury and damage; that all of said injury and damage was the direct and proximate result of the 'unlawfulness, negligence, recklessness of the defendants' in selling the intoxicating liquor to the obviously intoxicated minor, Dionne.
The court cited boty the Lammers and Hitson cases and held that in both of them the language in re proximate cause was not necessary to the decision since in the Lammers case the statement 'it has been uniformly held, in the absence of statute to the contrary, that the sale of intoxicating liquor is not the proximate cause of injuries subsequently received by the purchaser because of his intoxication' was qualified by the words 'in the absence of statute to the contrary' and in the Hitson case the actionable wrong was the dragging of plaintiff across the floor. (Emphasis added.)
The court cited Seibel v. Leach, 233 Wis. 66, 288 N.W. 774, where the action was for property damage and personal injuries brought by a third person against the defendant tavern owner for selling intoxicants to one Leach who drove his car in such a manner as to cause plaintiff's injuries and damage. In the Wisconsin case, the court relied upon Demge v. Feierstein, 222 Wis. 199, 268 N.W. 210, which was an action brought by a widow whose husband had been sold intoxicants by tavern owners after she had given them notice not to let her husband have any more liquor. After leaving the tavern, her husband lost control of his car and was fatally injured. The court there held that there was no cause of action at common law against a vendor of liquor in favor of those injured by the intoxication of the vendee, Black, Law of Intoxicating Liquors, ch. 13, sec. 281; Buntin v. Hutton, 206 Ill.App. 194; Healey v. Cady, 104 Vt. 463, 161 A. 151; Coy v. Cutting, 138 Kan. 109, 23 P.2d 458; State v. Johnson, 23 S.D. 293, 121 N.W. 785, 22 L.R.A.,N.S., 1007; Kraus v. Schroeder, 105 Neb. 809, 182 N.W. 364, 365. The California court concluded that in the absence of civil damage legislation in this state, and with such views as have been expressed by our courts on the subject (Lammers and Hitson cases) coinciding with the holdings in other jurisdictions where the questions have been passed upon, 'we are satisfied that the sustaining of the demurrer of respondent Pangracs was correct.'
Mr. Justice Dooling dissented. He admitted frankly that the cases from other jurisdictions were all to the effect that in the absence of statute no remedy existed against the dispenser of liquor for injuries resulting to third persons from the acts of intoxicated persons. 'However, considered as questions of the law of negligence and proximate cause, I cannot bow to the reasoning of those decisions when carried to the full extreme of holding that under no circumstances can one who dispenses liquor to another knowing that he is becoming intoxicated be liable to a third person later injured by the intoxicated person's conduct; and I can see no reason for perpetuating in the law of this state the error of the courts of other jurisdictions.
'Negligence is measured by what a person of ordinary prudence would or would not do under the same or similar circumstances and it is thoroughly settled that negligence may be the proximate cause of an injury to another even though the act of a third person intervenes, if a person of ordinary prudence could reasonably anticipate the probability of the third person's intervening conduct. McEvoy v. American Pool Corp., 32 Cal.2d 295, 299 et seq., 195 P.2d 783; Mosley v. Arden Farms Co., 26 Cal.2d 213, 218 et seq., 157 P.2d 372, 158 A.L.R. 872; Katz v. Helbing, 215 Cal. 449, 10 P.2d 1001.' (Emphasis added.)
Both the Fleckner and Hitson cases alleged no more than negligence is serving liquors; in the present case, plaintiff wife alleges that 'on occasions too numerous to name (she) requested defendants and each of them not to give, sell or furnish intoxicating beverages to James Bernard Cole sufficient to allow him to become intoxicated' but that defendants refused to desist from selling Cole intoxicating beverages; and that defendants had specific knowledge that when Cole became intoxicated he was invariably belligerent and quarrelsome. In the Hitson case, the plaintiff was suing for his own injuries received while he was intoxicated; in the Fleckner case, a third person was suing for injuries received by reason of the driving of an automobile by an intoxicated person. In neither case were the surviving spouse and defendant children suing for loss of consortium and support; and in neither case did the defendant tavern owner have prior specific notice and knowledge of the effect of liquor on the patron to whom the intoxicants were sold.
In Woollen and Thornton 'Law of Intoxicating Liquors' (Vol. II, sec. 1029, p. 1837) it is said: 'The right of persons injuriously affected by the sale of intoxicating liquors to recover damages is not entirely restricted to the right given them by statute. In several jurisdictions it has been held that when, by the continued sale of intoxicating liquors, a person has been unable to perform the duties owing by him to another, under the common law, the seller was liable in damages to persons to whom the duty was owing for any loss that he thereby sustained (Holleman v. Harward, 119 N.C. 150, 25 S.E. 972, 974, 34 L.R.A. 803: 'It is lawful to sell laudanum as a medicine. It is also lawful to sell spirituous liquors as a beverage upon the dealer's complying with the license laws, except in the cases prohibited by statute. Certainly no fair inference can be drawn from this that damages may not be recovered from one who knowingly and willfully sells or gives laudanum or intoxicating liquors to a wife, in such quantities as to be attended by such consequences to the wife as are set out in the complaint in this action.') However, it may be stated as a general rule, that unless the rights of persons having peculiar interests in the buyers of intoxicating liquors, such as a wife in her husband, or parent in the child, are invaded by the sales of intoxicating liquors and the seller of such liquors has notice of the injurious effects of the liquors so sold upon the buyer, Holleman v. Harward, supra; Hoard v. Peck, 56 Barb. (N.Y.) 202 (opium); Struble v. Nodwift, 11 Ind. 64, the right to recover damages for injuries resulting from the sales of intoxicating liquors in purely statutory, and the action is governed entirely by the provisions of the statute.' (Emphasis added.)
In Peck v. Gerber, 1936, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996, in which it appears that the plaintiff was assaulted in the saloon by another customer, the latter being a regular customer who was known to the saloonkeeper to be a trouble-maker, the court held the saloonkeeper liable, because he was negligent, and expressed the view that he did not use the care required of the ordinarily prudent man in maintaining order for the safety of his guests. The court stated that the standard of care does not vary, but that the ordinarily prudent man exercises case commensurate with the dangers to be avoided and the likelihood of danger to others. There is, apparently, no statute in Oregon on which recovery could have been predicated. Other cases in which the saloonkeeper was held liable under somewhat similar circumstances are Mastad v. Swedish Brethren, 83 Minn. 40, 85 N.W. 913, 53 L.R.A. 803, and Molloy v. Coletti, 114 Misc. 177, 186 N.Y.S. 730. In Curran v. Olson, 88 Minn. 307, 92 N.W. 1124, 60 L.R.A. 733, where the factual situation was different, the court said: '* * * the bartender knew, or might have known by the exercise of the slightest care, what the alcohol was to be used for, and could have prevented the injury to the plaintiff.'
In Cherbonnier v. Rafalovich, 9 Cir., 88 F.Supp. 900, the court granted leave to plaintiff to plead over to allege, if he could, that the saloonkeeper had knowledge of the patron's violent disposition while under the influence of intoxicating beverages. Here, the court pointed out, 88 F.Supp. at page 903, that: 'The present trend is apparently toward holding the defendant saloonkeeper liable for lawless acts occurring in the saloon. It is said in 30 Am.Jur. 574 that: 'The better reason appears to favor placing on the proprietor the duty of seeing to it that the patron is not injured either by those in his employ or by drunken or vicious men whom he may choose to harbor. Further, a guest or patron of such a place has a right to rely on the belief that he is in an orderly house and that the operator, personally or by his delegated representative, is exercising reasonable care to the end that the doings of the house shall be orderly".
It would seem from the foregoing that the rule of the common law with respect to intoxicating beverages is not quite so clearly defined in favor of non-liability as would appear from statements found in other cases and textbooks.
Plaintiffs next contend that the rule of the common law with respect to habit forming drugs should be controlling here. At common law, it was held that a wife could bring an action against one who sole habit forming drugs to a husband with knowledge that the drug was intended to satisfy a craving induced by habitual use, Hoard v. Peck, 56 Barb. (N.Y.) 202; Holleman v. Harward, 119 N.C. 150, 25 S.E. 972; Flandermeyer v. Cooper, 85 Ohio 327, 98 N.E. 102, 40 L.R.A.,N.S., 360 (morphine); Moberg v. Scott, 38 S.D. 422, 161 N.W. 998, L.R.A.1917D, 732 (opium); Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145 (morphine).
In Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147, 130 A.L.R. 341 (in Arizona there is no civil damage act), it was held that defendant vendor of intoxicating liquors was liable to the plaintiff wife after selling such liquors over her protest and with knowledge that the plaintiff's husband was an habitual drunkard and had reached such a state that his power to drink or not as he chose had been destroyed. The court concluded that the defendants had breached a duty owing to the plaintiff for which the plaintiff should be compensated in damages.
A note in Southern California Law Review (14:91) points out that at common law, a vendor was liable to one spouse for a sale to the other spouse, or to a parent for a sale to a minor child of habit forming drugs to the extent of the damages suffered by the loss of consortium or the services of the victim of the drugs, if the vendor knew or had reason to know that the drugs were to be used for a purpose harmful to the purchaser. The doctrine stems from the husband's common law cause of action against one who injures the husband's wife and thereby causes the husbank expense and loss of consortium, Golden v. R. L. Greene Paper Co., 44 R.I. 231, 116 A. 579, 21 A.L.R. 1517; and from the wife's similar cause of action. Emerson v. Taylor, 133 Md. 192, 104 A. 538, 5 A.L.R. 1049; Nash v. Mobile & Ohio R. Co., 149 Miss. 823, 116 So. 100, 59 A.L.R. 680, recognized subsequent to her right to sue in her own name as created bt the various Married Women's Acts, see California Code of Civ.Proc. § 370. The doctrine would now seem to have acquired the dignity of a status distinct from its parent action, Restatement, Torts, §§ 696, 697, 705; 17 Am.Jur., Drugs & Druggists, 864, § 34, especially in view of its application to parent and child.
The author of the article points out that there should be no reason to distinguish between habit forming drugs and intoxicating liquors since both have two important characteristics in common: (1) Their use in substantial quantities causes injury to the mind and body; and (2) after reaching a certain point in their use, a person can no longer control his appetite for them. (As to the general pharmacological problem, see The Action of Alcohol on Man (1923), Ernest H. Starling; The Opium Problem (1928), Charles E. Terry and Mildred Pellens; U. S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs (1938).)
In the Pratt case, supra, the court said (55 Ariz. 535, 104 P.2d 151): 'A careful study of the cases following the principle laid down in Hoard v. Peck, supra, will show that the reasoning upon which they were based is that there are certain substances which, if used habitually, destroy the volition of the user to such an extent that he has no power to do aught but consume them when they are placed before him; that the consumption and the sale of such substances are, therefore, merged and become the act of the vendor; the sale is, therefore, the proximate cause of the loss of consortium, and the consumer cannot, having lost his volition to act, be guilty of contributory negligence. The best known of these substances is opium and its various derivatives, but it is a well-known scientific fact that many other things, under certain circumstances, will produce the same result. Cocaine is an instance among the drugs, and it is equally well established that the excessive use of intoxicating liquor may, and frequently does, have the same effect. We think it would be a narrow and illogical limitation of the rule to hold that because one habit-forming substance is a 'drug' in the technical sense of the term, and another is a 'liquor', different rules should be applied to the sale and use thereof. In fact, there is no specific holding applying such limitation in any of the recorded cases, and in Holleman v. Harward, supra, the court intimated strongly that under certain circumstances intoxicating liquor might fall within the same rule as laudanum as a habit-forming substance. Of course, since there is not the same presumption that the use of liquor will eventually cause the loss of volition that there is with a habit-forming drug, it is incumbent upon plaintiff to prove that to the knowledge of defendant such a stage has been reached by the consumer, but if this fact is once established, in all reason and logic the right of action should be the same in one case as in the other. We are satisfied from our examination of the cases that the language of the Restatement, supra (Torts, vol. 3, p. 696), 'c. The expression 'habit-forming drugs' as used in this section does not include intoxicating liquor', was not meant as a declaration that the decided cases exclude liquors from the rule, for no such cases have been cited to us, but rather is merely a recognition of the fact that the precise issue had not yet been presented to and determined by any court.' The court frankly admitted that: 'Every requested application of the principles of the common law to a new set of circumstances is originally without precedent, and some court must be the first one to make the proper application.
'In answer to the second contention (judicial legislation), we are not asked to make a law. We are asked to declare what the common law is and always has been, and a declaration by us that it has always permitted such an action, even though none has ever actually been brought, is no more legislation than would be a declaration that it does not.
'So far as the bringing of unwarranted actions is concerned, if the facts do not show the action is justified, we must assume that the trial court and jury will properly apply the law, and we may not refuse to declare it correctly merely because there are some who may attempt to apply it to cases where the facts do not sustain it.
'On a careful review of all the authorities and a consideration of well-known scientific facts, we think that under the rationale of the rule laid down in Hoard v. Peck, supra, and the cases following it, the sale of intoxicating liquors under the circumstances indicated above is subject to the same rule as the sale of what is, in the strict sense of the word, a habit-forming 'drug', and that under such circumstances an action for the sale of the former should be upheld as allowed by the common law as well as the latter.'
In Swanson v. Ball, 67 S.D. 161, 290 N.W. 482, 483, there was no dramshop act involved. The court there was concerned with facts substantially the same as the ones here under consideration. Plaintiff's husband was alleged to have died after drinking liquor sold to him by defendants who admitted receiving both oral and written notice from plaintiff to refrain from doing so. Defendants appealed from an order overruling their demurrer to plaintiff's complaint. The court, in affirming, said: 'We are not impressed with the argument presented in which the appellant has attempted to differentiate between the opium drug in the case of Moberg v. Scott, supra (161 N.W. 998), and the intoxicating liquor in the instant case. This court through its former decisions, which we have just referred to, has quite conclusively established that a complaint such as we are considering states a cause of action. The right of the wife to the consortium of the husband is one of her personal rights and we believe that the allegations of the complaint are sufficient in both statements, as to facts and form, to permit a trial upon its merits.' The court also held that the wife had a cause of action 'independent of any specific statute'.
So far as the rationale of the decided cases is concerned that the consumption and not the sale of the liquor is the proximate cause of the injury received by the third person it appears clear that under the circumstances of this case, the sale and consumption were so merged as to become one act and under the rule that individuals must be held to have contemplated the natural and probable result of their own acts purposely and intentionally committed it is unrealistic to say that the act of the deceased in drinking the liquor and thereafter becoming belligerent and pugilistic was not a foreseeable consequence of the sale by defendant. See 23 So.Cal.L.Rev. 420, 421. This court has held many times that negligence may be the proximate cause of an injury even though the act of a third person intervenes, if a person of ordinary prudence could reasonably anticipate the probability of the third person's intervening conduct, McEvoy v. American Pool Corp., 32 Cal.2d 295, 299, 195 P.2d 783; Mosley v. Arden Farms Co., 26 Cal.2d 213, 218, 157 P.2d 372, 158 A.L.R. 872; Katz v. Helbing, 215 Cal. 449, 10 P.2d 1001 and others.
We therefore hold that it was an abuse of discretion for the trial court to sustain the demurrer without leave to amend. We do not decide, however, that the complaint was not subject to special demurrer, and the trial court may in its discretion require the clarification of uncertainties or ambiguities in the complaint.
The judgment is reversed.
SHENK and SPENCE, JJ., and BRAY, J. pro tem., concur.
SCHAUER, Justice.
I dissent.
In this wrongful death action plaintiffs, who are the surviving widow and minor children of James Bernard Cole, deceased, seek to recover damages for the allegedly negligent furnishing of intoxicating liquor to the deceased, which plaintiffs claim proximately caused his death. I believe that the courts of this state cannot tenably, nor should they, hold that the complaint states a cause of action.
The material allegations of the complaint (first amended) are that defendants own an operate an establishment known as the Tropic Isle in which they sell intoxicating liquors to the public for consumption on the premises; on October 13, 1950, James Bernard Cole was a patron of the Tropic Isle and defendants sold him alcoholic beverages which he drank; immediately before he entered the Tropic Isle 'Cole was not intoxicated,' but he became intoxicated on the beverages sold him at the Tropic Isle; Cole had patronized the Tropic Isle on numerous occasions and was well known to defendants, who also knew that he was 'normally of quiet demeanor but that when * * * intoxicated he became belligerent, pugnacious and quarrelsome'; on numerous prior occasions plaintiff widow had requested defendants 'not to sell or furnish intoxicating beverages to said James Bernard Cole sufficient to allow him to become intoxicated thereon,' but defendants refused to comply with such requests; because of Cole's intoxication on the day involved and as a proximate result of the beverages sold to him by defendants Cole became belligerent, pugnacious and quarrelsome and engaged in fisticuffs with one Leonard; Cole was struck by Leonard and fell 'to the pavement, striking his head against the concrete, by reason of which * * * Cole suffered a subarachnoid hemorrhage, traumatic, and died immediately'; at the time of his death Cole 'was an able-bodied man of the age of 39 years,' earning approximately $4,000 a year.
Defendant Frank Van Stone demurred to the complaint on the grounds that it failed to state facts sufficient to constitute a cause of action against him; that the complaint showed on its face that decedent's injuries were caused and contributed to by fault and negligence on decedent's part; that it could not be determined in what manner any acts of the defendant were the proximate cause of the alleged injuries; and that the complaint shows on its face that the acts of the third party, Leonard, were an intervening and superseding cause of decedent's death. Following the hearing upon the demurrer and the statement of counsel for plaintiffs that 'he cannot further amend,' the court sustained the demurrer without leave to amend, and judgment was entered accordingly.
There is eminent authority for the proposition stated in 30 American Jurisprudence 573, section 607, that 'The common law gives no remedy for injury or death following the mere sale of liquor to the ordinary man, either on the theory that it is a direct wrong or on the ground that it is negligence, which imposes a legal liability on the seller for damages resulting from the intoxication.' (See e. g., Hitson v. Dwyer (1943), 61 Cal.App.2d 803, 808, 143 P.2d 952; Fleckner v. Dionne (1949), 94 Cal.App.2d 246, 240 P.2d 530; Lammers v. Pacific Electric Ry. Co. (1921), 186 Cal. 379, 384, 199 P. 523; Tarwater v. Atlanta Co., Inc. (1940), 176 Tenn. 510, 144 S.W.2d 746; 48 C.J.S., Intoxicating Liquors, §§ 430-431, pp. 716-718.) However, many states have adopted statutes, known as 'civil damage acts,' giving a right of action against persons furnishing intoxicants. California has no such statute.
Plaintiffs 'recognize that it is the general rule of law that it is the consumption of the intoxicating liquor which is the proximate cause of any subsequent injury by reason of such intoxication rather than the sale of intoxicating liquor' (citing Hitson v. Dwyer (1943), supra, and Fleckner v. Dionne (1949), supra), but urge that 'knowledge on the part of the defendants of the propensities of Cole to seek a quarrel when intoxicated, and * * * their wilful refusal to heed the pleas of the wife, and their wilful insistence in selling intoxicating liquor to Cole and allowing him to be intoxicated' are distinguishing factors which support the charge of negligence here and establish the sale of the liquor as the proximate cause of the injury. In my opinion, such a view, in the absence of legislative action, is not tenable.
In the first place, it appears that in Fleckner v. Dionne knowledge on the part of the tavernkeeper was also involved. The allegations of the complaint there were that on the evening in question defendant Dionne, a minor, was a patron of the tavern and was sold and given intoxicating liquors and allowed to consume them in the tavern; that the defendant tavernkeeper knew that Dionne was a minor and sold the liquors to him while he was already under the 'severe influence of intoxicating liquors'; that he knew also that Dionne had upon or near the premises an automobile and would thereafter drive it; that defendant knew and should have known and foreseen that the driving of the automobile by him in his then intoxicated condition could and would result in harm and damage to others upon the highway; that Dionne while so intoxicated negligently drove his automobile into an automobile in which plaintiffs were riding and injured them; that the sale and serving of the liquor to Dionne by defendant constituted a 'negligent disregard of the rights of plaintiffs' which joined with Dionne's negligence in proximately injuring plaintiffs. Defendant's general demurrer was sustained with leave to amend, and on plaintiffs' failure to amend judgment was entered in defendant's favor. The District Court of Appeal affirmed the judgment, relying upon the Hitson and Lammers cases, supra, as well as upon various out-of-state decisions, and this court denied a hearing. Thus it would seem that the knowledge alleged in the Fleckner case was much more specific and extensive than that in the instant case. Here it is only alleged that defendant knew of the belligerent disposition of the deceased when he was intoxicated.
In the next place, it is established in Hitson v. Dwyer (1943), supra, 61 Cal.App.2d 803, 143 P.2d 952, that one who suffers injuries by reason of his own intoxication may not recover from the tavernkeeper by reason of the sale of the liquor to the plaintiff. In Hitson plaintiff alleged that while obviously intoxicated and sitting on a movable stool at defendants' bar he wrongfully was served intoxicating liquor, and as a result he fell from the stool to the floor, and was thereafter dragged by defendants from his position on the floor; that as a result of the fall or the dragging or both, plaintiff was injured. It was held that so far as concerned the fall and any injuries suffered therefrom, the proximate cause was the drinking of the liquor rather than the wrongful (i. e., in violation of the alcoholic beverage act) sale thereof to an obviously intoxicated person, and any wrong was nonactionable. This court denied a hearing. If the man who is injured by reason of his intoxicated state may not himself recover from the one who provided the liquor, then it would seem to follow that under the generally accepted principles governing wrongful death actions, his survivors may not recover in this, which is such an action. (See 8 Cal.Jur. 988-989, § 41, and cases there cited; 30 Am.Jur. 575, § 610; Demge v. Feierstein (1936, 222 Wis. 199), 268 N.W. 210, 212 (liquor sale); Scott v. Greenville Pharmacy, (1948, 212 S.C. 485), 48 S.E.2d 324, 326, 11 A.L.R.2d 745 (barbiturate sale).)
It also seems to me that other cases, from other jurisdictions, relied upon by plaintiffs are clearly distinguishable on their facts, even if it be assumed that upon similar facts action would lie in California. For example, Cherbonnier v. Rafalovich (9 Cir., 1950), 88 F.Supp. 900 (a one-judge District Court opinion), was an action against saloonkeepers by one of their patrons who, while he was eating in the saloon and cafe, was attacked by another patron, one Hobson, who was drunk. Although dismissing the complaint for failure to state a cause of action in that it was not alleged that defendants knew Hobson was of a violent disposition or had threatened harm to plaintiff before the was served the last of the intoxicating drinks, the court did observe that 'The present trend is apparently toward holding the defendant saloonkeeper liable for lawless acts occurring in the saloon,' and quoted from 30 American Jurisprudence 574, section 609, the statement that 'The better reason appears to favor placing on the proprietor the duty of seeing to it that the patron is not injured either by those in his employ or by drunken or vicious men whom he may choose to harbor. Further, a guest or patron of such a place has a right to rely on the belief that he is in an orderly house and that its operator * * * is exercising reasonable care to the end that the doings in the house shall be orderly.' Rommel v. Schambacher (1887), 120 Pa. 579, 11 A. 779, 6 Am.St.Rep. 732; Curran v. Olson (1903), 88 Minn. 307, 92 N.W. 1124, 60 L.R.A. 733; and Peck v. Gerber (1936), 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996, additionally relied upon by plaintiffs, also involve the liability of the saloonkeeper as a proprietor for not using reasonable care in maintaining order for the safety of his guests. However, as is indicated in the opinions in the cited cases as well as in the annotation in 106 Am.L.R. 1003, following the report of Peck v. Gerber (1936), supra, and as recognized by the court in the Cherbonnier case, the liability of a saloonkeeper in this line of cases appears to be related to that of innkeepers and restaurateurs for injuries to guests or patrons by other guests or persons not connected with the management, and is an exception to the general common law rule of non-liability of the vendor of intoxicating liquor, and furnishes no precedent whatsoever for imposing liability on the saloonkeeper under the circumstances alleged in the complaint in this case.
In Pratt v. Daly (1940), 55 Ariz. 535, 104 P.2d 147, 130 A.L.R. 341, plaintiff wife was permitted to recover damages resulting from defendants' sale of intoxicating liquor to her husband with knowledge of the fact that the husband was an habitual drunkard. Arizona had no civil damage statute. The court there, after discussing the rule as stated in Restatement of the Law of Torts, volume 3, section 696, that 'One who, without a physician's direction, sells or otherwise supplies to a married woman a habitforming drug with knowledge that it will be used in a way which will cause harm to any of the legally protected marital interests of the husband is liable for harm caused by such drug to those interests unless the husband consents to the wife's acquisition or use of the drug' and that the same rule applies to a sale to the husband in an action by the wife under similar circumstances (see also 130 A.L.R. 352-365), then goes on to observe (55 Ariz. 535, 104 P.2d 147, at pages 347, 348 of 130 A.L.R.): 'Of course, since there is not the same presumption that the use of liquor will eventually cause the loss of volition that there is with a habit-forming drug, it is incumbent upon plaintiff to prove that to the knowledge of defendant such a stage has been reached by the consumer, but if this fact is once established, in all reason and logic the right of action should be the same in one case as in the other * * *. The allegation of the complaint is that the husband of plaintiff was an 'habitual drunkard,' and that the fact was well known to defendants. The term 'habitual drunkard' has been defined repeatedly, and in almost all of the definitions the principal element emphasized is that such a person has lost the will power to resist the temptation when the liquor is offered him.' By contrast, the plaintiffs in the case now before us allege no such lack of volition on the part of the decedent, but, rather, that he was an 'able-bodied man' who was not intoxicated immediately before he entered defendant's establishment on the day in question. Other cases indicating the court's awareness of the element of volition or of competency are Seibel v. Leach (1939, 233 Wis. 66), 288 N.W. 774, in which the court remarked that 'Under the common law it is not an actionable wrong to sell or to give intoxicating liquors to an able-bodied man,' and affirmed a judgment dismissing the complaint; and Scott v. Greenville Pharmacy (1948, 212 S.C. 485), supra, 48 S.E.2d 324, 327, in which it was pointed out that the complaint failed to describe plaintiff's deceased husband 'as being without mind or lacking in volition,' in buying and consuming barbiturate capsules during a period of about a year, at the end of which time he committed suicide by hanging himself, and judgment for defendant, who sold the barbiturates, following the sustaining of his demurrer was affirmed.
It appears to me that for this court to undertake to create a cause of action for plaintiffs where none exists either by statute or by common law is a clear invasion of the powers and function of the Legislature. As declared by the court in State for Use of Joyce v. Hatfield, 1951, 197 Md. 249, 78 A.2d 754, 757, in affirming the judgment on demurrer in defendants' favor in a wrongful death action in which plaintiff widow whose husband was killed by an intoxicated driver sought damages from tavern owners who had sold the liquor, 'It would be worse than futile for us to attempt to convince plaintiff by reason, where all other courts have failed and the accumulated mass of authority carries no weight at all. In the circumstances of this case, if we were convinced (as we are not) of the soundness of plaintiff's reasoning, we should virtually usurp legislative power if we should declare plaintiff's contentions to be the law of Maryland. In the course of the last hundred years there probably has seldom, if ever (except during prohibition), been a regular session of the General Assombly at which no liquor laws were passed. On few subjects are legislators kept better informed of legislation in other states. In the face of the flood of civil damage laws enacted, amended and repealed in other states and the Volstead Act and of the total absence of authority for such liability, apart from statute the fact that there is now no such law in Maryland expresses the legislative intent as clearly and compellingly as affirmative legislation would.' (See also Henry Grady Hotel Co. v. Sturgis (1943, 70 Ga.App. 379), 28 S.E.2d 329, 333: 'At common law there was no right of recovery for the selling or furnishing of intoxicating liquor to an intoxicated person. (Citation.) Whatever the reasons for such a rule, and whether we agree or disagree with them, the courts have no authority to grant recoveries or authorize actions unknown to the common law. That is a matter for the Legislature. As was said in Seibel v. Leach (1939, supra), 233 Wis. 66, 288 N.W. 774, 775, 'Courts may in proper instances apply old rules to newly created conditions, but they cannot create new rules for conditions already regulated. The common law rule holds the man who drank the liquor liable and considers the act of selling it as too remote to be a proximate cause of an injury caused by the negligent act of the purchaser of the drink. ") The same view is strongly expressed in the dissenting opinion of Chief Justice Ross of Arizona, in Pratt v. Daly (1940), supra, 55 Ariz. 535, 104 P.2d 147, 130 A.L.R. 341, 350.
As weighing against the wisdom and fairness of the act of this court in creating a cause of action upon the allegations of the complaint now before us, the following matters may be pointed out: Plaintiff alleges that her requests to defendant were that he not 'give sell or furnish intoxicating beverages to said James Bernard Cole sufficient to allow him to become intoxicated thereon,' but does not suggest in what manner defendant could know the quantity of liquor which would cause such intoxication; moreover it is a matter of common knowledge that the amount or kind of liquor which will cause intoxication varies with drinkers and occasions, as well as does the behavior which the liquor will induce in the imbiber. (See Science News Letter for October 11, 1952, p. 233. 1) Requiring a tavernkeeper, a hotel proprietor, or a private host and there is no respectable basis for distinguishing among them as to liability to ascertain at his peril the amount of liquor which a customer or guest could safely imbibe on any particular occasion seems unreasonable. In fact, it requires the proprietor or host to be clairvoyant. It is not shown that even a medical doctor could have this knowledge or furnish the information.
Furthermore, if defendant had refused to provide the liquor deceased sought, it could easily have been secured elsewhere. And would it not be just as reasonable to chare negligence to a wife who knows her husband's drinking proclivities and fails to keep him at home to indulge in them (or to accompany him) where she can care for and protect him from harm until he has recovered instead of permitting him to possibly endanger the public while he is intoxicated, as it is to claim negligence on the part of defendant here? Does not the wife owe as great a duty as the proprietor or host? Certainly if a vendor of liquor is to be held responsible by this court in the absence of specific legislation, then a host who provides liquor on a social occasion, presumably to an acquaintance, probably a well known acquaintance, should much more clearly be liable for furnishing too much. And what of the liability of a cafe owner or a social host who serves particular food to a guest who orders it with the announcement that he is allergic to it or that his doctor has told him not to eat it, but that he intends to indulge himself anyway, if the guest thereafter becomes ill and dies as a result of his self-indulgence? And what of the liability of any seller or giver of other instrumentalities (such as automobiles, bicycles, firearms, machinery, etc.) to one whom there might be reason for believing might misuse such instrumentality?
Entirely aside from direct constitutional proscriptions against invasion of the legislative function by the judiciary through court created liabilities, an undesirable element of this method of law revision is that the newly propagated measure is not subject either to gubernatorial veto or to referendum by the people.
It is my view that we should follow the law, not create it; if we follow it the judgment must be affirmed.
TRAYNOR, Justice.
I dissent.
It appears from the face of the complaint that plaintiffs' cause of action, if any, is barred by the contributory negligence of decedent. It is not alleged that decedent's volition was so far impaired that he could not refrain from drinking to the point of intoxication. Moreover, he knew as well as defendant did that he became belligerent, pugnacious and quarrelsome when intoxicated. Accordingly, even if it is assumed that defendant was guilty of actionable negligence in serving decedent the drink that made him intoxicated, decedent was equally guilty of negligence in drinking it.
I would affirm the judgment.
EDMONDS, J., concurs. --------------- * Opinion vacated 289 P.2d 450. 1 'If someone tells you be can drink a quart or more of 100-proof liquor a day, do not believe him. He might, if he is a chronic alcoholic, be able to drink a fifth of 100-proof liquor in 24 hours, but no more. 'Studies showing this are reported by Drs. Henry W. Newman, Roger H. L. Wilson and Edith J. Newman of Stanford University School of Medicine, San Francisco, Science (Sept. 26). 'Earlier, Dr. Henry Newman had reported on the basis of dog studies that an average-weight man might consume a quart of 100-proof liquor in 24 hours. The amount is slightly less. He and his colleagues find from direct experiments on three men and one woman that it is 760 milliliters, or about four-fifths of a quart. 'The woman and one man were chronic alcoholics, the other two men were moderate drinkers. In the studies, each got either diluted alcohol or 'an acceptable alcoholic beverage' every hour for several days. Tests of the alcohol level in the blood or saliva gave figures from which the scientists could determine exactly how much alcohol each of the four persons tested could handle in their bodies in 24 hours. 'For the woman, this was slightly less than a pint, 383 milliliters, and for the two moderate men drinkers, the figures were 608 and 524 milliliters, both somewhat under a quart. The male alcoholic in the study consumed the highest amount, 760 milliliters.'