Brockett v. Kitchen Boyd Motor Co.

• Decision Date: 16 July 1968
• Citation: 264 Cal.App.2d 69,70 Cal.Rptr. 136
• Court: California Court of Appeals Court of Appeals
• Parties: Terry BROCKETT et al., Plaintiffs and Appellants, v. KITCHEN BOYD MOTOR COMPANY, Defendant and Respondent. Civ. 896.

Page 136

70 Cal.Rptr. 136

264 Cal.App.2d 69

Terry BROCKETT et al., Plaintiffs and Appellants, v. KITCHEN BOYD MOTOR COMPANY, Defendant and Respondent.

Civ. 896.

Court of Appeal, Fifth District, California.

July 16, 1968.

Rehearing Denied Aug. 12, 1968.

Hearing Denied Oct. 23, 1968.

[264 Cal.App.2d 70] Sims & Solomon by Gabriel W. Solomon, Bakersfield, for plaintiffs and appellants.

Borton, Petrini, Conron & Brown by J. Craig Jenkins, Bakersfield, for defendant and respondent.

OPINION

CONLEY, Presiding Justice.

The seven plaintiffs were occupants of a 1965 Chrysler automobile which was stopped in the nighttime at a red traffic light on 24th Street in Bakersfield. A 1959 Ford Thunderbird driven by Jimmie Leon Huff, an intoxicated minor of the age of 19 years, struck the Chrysler and injured the occupants. The complaint alleges that Huff was an employee of Kitchen Boyd Motor Company, the defendant copartnership, and that his intoxication was induced by the defendant as the result of a prolonged Christmas party for its employees, which started at noon on December 23, 1966, and during which the defendant served to its employees, including Huff, copious drinks of liquor and solicited their indulgence; that Huff became grossly intoxicated by 7:05 o'clock to the point where he could not properly drive an automobile in traffic, but that notwithstanding the existence of such facts the defendant placed him in the automobile, which Huff had been driving, and directed him to proceed through traffic to his home.

The defendant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action; and the demurrer was sustained on that ground without leave to amend. A second ground of demurrer alleged uncertainty in that it did not appear 'how or in what manner any actions of defendants were the proximate cause of the alleged injuries.' This ground of demurrer was overruled by the court. There followed a dismissal of the case by court order and this appeal was taken from the judgment of dismissal.

In sustaining the demurrer the trial court considered as applicable and binding upon it Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530; Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450, 5 A.L.R.2d 1137, and Fuller v. Standard Stations, Inc., 250 Cal.App.2d 687, 58 Cal.Rptr. 792. The obvious issue on the appeal as framed by both sides is whether those cases prevent the plaintiffs here from recovering as a matter of law.

In California the rule is unquestionably established that the mere sale or supplying of intoxicating liquor to a person who becomes intoxicated does not make the seller or supplier liable to the intoxicated person or to a third party injured by such intoxicated person. The rationale of these cases is that it is the consumption of the liquor, rather than the furnishing of it, which is the proximate cause of the injury to the intoxicated person or to third persons; therefore, as the furnishing of the alcoholic drink is not the proximate cause of the injury, there is no liability. The rule has been extended to protect the seller of gasoline for use by the intoxicated person (Fuller v. Standard Stations, Inc. supra, 250 Cal.App.2d 687, 58 Cal.Rptr. 792), and it is unquestionably binding in California despite the provisions of the Business and Professions Code, which make it a misdemeanor to sell or furnish an alcoholic beverage to a known drunkard or to an obviously intoxicated person or to a minor. (See Fleckner v. Dionne, supra, 94 Cal.App.2d 246, 250, 210 P.2d 530.) Although the rule has been subjected to multiple adverse criticism and is not effective in many other states (Fuller v. Standard Stations, Inc., supra 250 Cal.App.2d 687, 58 Cal.Rptr. 792), there can be no question that it is effective in California under the present enunciation of the law; this appellate court, of course, is bound by the rule as stated by the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

If the foregoing rule were the only applicable principle, it would be our duty to affirm the lower court's judgment. However, there are additional elements in the present situation which, in our opinion, make it incumbent upon us to reverse the judgment. These additional facts in part have their genesis in the special relationship of the minor, Huff, and the Kitchen Boyd Motor Company, and in part in the acts performed by the defendant as alleged in the complaint.

One of the applicable principles which calls for the reversal of this judgment of dismissal is alluded to in the recent case of Schwartz v. Helms Bakeries, Ltd., 67 A.C. 228, 234, 60 Cal.Rptr. 510, 514, 430 P.2d 68, 72, it is said in that comprehensive opinion:

'Firmly rooted in the common law lies the concept that although one individual need do nothing to rescue another from peril not of that individual's own making, nevertheless, 'He who undertakes to do an act must do it with * * * care.' (Johnston v. Orlando (1955) 131 Cal.App.2d 705, 709, 281 P.2d 357, 360; Valdez v. Taylor Automobile Co. (1954) 129 Cal.App.2d 810, 817, 278 P.2d 91; Griffin v. County of Colusa (1941) 44 Cal.App.2d 915, 923, 113 P.2d 270; Rest.2d, Torts, §§ 324, 324A; 3, Am.Jur. 659; Negligence, § 17.) '(I)f the defendant enters upon an affirmative course of conduct affecting the interests of another, he is regarded as assuming a duty to act, and will thereafter be liable for negligent acts or omissions * * *.' (Valdez v. Taylor Automobile Co., supra, 129 Cal.App.2d 810, 817, 278 P.2d 91, 95, citing Prosser, Torts, § 32, p. 190.) 'If the conduct of the actor has brought him into a human relationship with another, of such character that sound social policy requires some affirmative action or some precaution on his part to avoid harm, the duty to act or take the precaution is imposed by law. * * * Where a person is under the special protection of another, the latter is bound to exercise reasonable care to prevent harm to him, and this duty may include protection from the dangerous conduct of third persons.' (Harper & Kime, The Duty to Control the Conduct of Another (1934) 43 Yale L.J. 886, 898; see also Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762, 775, 97 P.2d 798; Perry v. D.J. & T. Sullivan, Inc. (1933) 219 Cal. 384, 390, 26 P.2d 485.)'

(See also: Prosser, Law of Torts, 3d. Ed., pp. 14--23; Harper and James, The Law of Torts, vol. 2, p. 1058 et seq.; Knight v. Gosselin, 124 Cal.App. 290, 294, 12 P.2d 454.)

It is our view that the alleged relationship between the minor Huff and Kitchen Boyd Motor Company was such that the defendant had assumed the responsibility for the well-being and proper conduct of the minor in the...