Cole v. Rush

• Decision Date: 28 October 1955
• Citation: 54 A.L.R.2d 1137,289 P.2d 450,45 Cal. 2d 345
• Court: California Supreme Court
• Parties: , 54 A.L.R.2d 1137 Dorothea COLE and Joyce Elaine Cole and Kenneth Foye Cole, minors, by their Guardian ad Litem, Dorothea Cole, Plaintiffs and Appellants, v. Paul RUSH, Frank Van Stone, and Curt Lonergan, individually and doing business as Tropic Isle, a co-partnership, Tropic Isle, a co-partnership, Defendants; Frank Van Stone, individually and doing business as Tropic Isle Cafe, Respondent. L. A. 22864.

Page 450

289 P.2d 450

45 Cal.2d 345, 54 A.L.R.2d 1137

Dorothea COLE and Joyce Elaine Cole and Kenneth Foye Cole, minors, by their Guardian ad Litem, Dorothea Cole, Plaintiffs and Appellants, v.Paul RUSH, Frank Van Stone, and Curt Lonergan, individually and doing business as Tropic Isle, a co-partnership, Tropic Isle, a co-partnership, DefendantsFrank Van Stone, individually and doing business as Tropic Isle Cafe, Respondent.

L. A. 22864.

Supreme Court of California, In Bank.

Oct. 28, 1955.

John C. Stevenson, Los Angeles, and Lionel Richman, San Bernardino, for appellants.

Parker, Stanbury, Reese & McGee, J. H. Peckham and White McGee, Los Angeles, MacFarlane, Schaefer & Haun, E. J. Caldecott, Trippet, for respondent.

Newcomer, Yoakum & Thomas and Lyle C. Newcomer, Los Angeles, as amici curiae on behald of respondent.

SCHAUER, Justice.

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.They appeal from an adverse judgment entered upon the sustaining of a demurrer to their amended complaint, without leave to amend.We have concluded that the trial court correctly held that the complaint does not state facts sufficient to constitute a cause of action, and that the judgment should be affirmed.

The material allegations of the amended complaint are that defendants own and operate an establishment known as the Tropic Isle in which 'intoxicating liquors are sold and furnished to the public for consumption on the premises'; on October 13, 1950, James Bernard Cole was a patron of the Tropic Isle and defendants'did sell, furnish, give, and cause to be sold, furnished and given' to him alcoholic beverages which he drank; immediately before he came 'to the premises of the defendants * * * Cole was not intoxicated by reason of the use of alcoholic beverages,' but he'did drink said alcoholic beverages so sold, furnished and given until and after * * * (he) became intoxicated.'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 ¹ to allow him to become intoxicated thereon'(italics added), but defendants refused to comply with such requests; 'by reason of said intoxication, and by reason of said alcoholic beverages so unlawfully sold, furnished or given * * * and as a proximate result thereof, * * * Cole became belligerent, pugnacious and quarrelsome; * * * Cole did thereafter on said date quarrel with one Franklin Leonard; * * * Cole and * * * Leonard did engage in fisticuffs; * * * Cole was struck by * * * Leonard and did fall to the pavement, striking his head against the concrete, by reason of which * * * Cole suffered a subarachnoid hemorrhage, traumatic, and died immediately from the effects of said blow'; at the time of his death Cole 'was an able-bodied man of the age of 39 years,' earning approximately $4,000 a year.

DefendantFrank Van Stone, allege to be one of the owners of the Tropic Isle, demurred to the amended complaint on the ground that it fails to state facts sufficient to constitute a cause of action.By way of particularizing its insufficiency he specifies, among other things, that the complaint shows on its face that decedent's injuries were caused or contributed to by fault and neligence on decedent's part and that it cannot be determined in what manner any acts of the defendant were the proximate cause of the alleged injuries.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.

The general rule of the common law as to tort liability arising out of the sale of intoxicating beverages is stated in 30 American Jurisprudence 573, section 607: '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, with imposes a legal liability on the seller for damages resulting from the intoxication.'(For examples of cases following the rule see: Histon v. Dwyer(1943), 61 Cal.App.2d 803, 808, 143 P.2d 952;Fleckner v. Dionne(1949), 94 Cal.App.2d 246, 210 P.2d 530;Lammers v. Pacific Electric Ry. Co.(1921), 186 Cal. 379, 384, 199 P. 523;Howlett v. Doglio(1949), 402 Ill. 311, 83 N.E.2d 708, 712, 6 A.L.R.2d 790;Tarwater v. Atlanta Co., Inc.(1940), 176 Tenn. 510, 144 S.W.2d 746;48 C.J.S., Intoxicating Liquors, § 430, 432, pp. 716-718;see alsoAnnotations44 L.R.A. (NS) 299; 130 A.L.R. 357-369.)A number of jurisdictions have adopted statutes creating a right of action, under specified conditions, against persons furnishing intoxicants.²California, however, has enacted no such statute notwithstanding the fact that, as hereinafter shown, its Legislature has repeatedly dealt with problems concerning alcoholic beverages and concerning tort liability.

Plaintiffs with commendable frankness state in their opening brief (p. 3) that they'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, andFleckner v. Dionne(1949), supra;see alsoCollier v. Stamatis, (Ariz.1945), 162 P.2d 125, 127: 'The principle is epitomized in the truism that there may be sales without intoxication, but no intoxication without drinking', 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.Such a view, we conclude in the light of the common law, cannot be sustained in this state in the absence of legislative action.

In the first place, it appears that in Lammers v. Pacific Electric Ry. Co.(1921), supra, 186 Cal. 379, 384, 199 P. 523, this court stated and relied on the general rule that 'the sale of intoxicating luquor is not the proximate cause of injuries subsequently received by the purchaser because of his intoxication.'In that casethe plaintiff, while intoxicated, was ejected from defendant's passenger train; he left the place of immediate peril where he was ejected but later returned to the tracks at a point about three-quarters of a mile away and was seriously injured.The court said: 'The only connection between the ejection and the injury would be the fact that if there had been no ejection there would have been no injury.The sale of the whiskey to the plaintiff would come nearer being a proximate cause of the injury than the ejection from the railway trian.The peril arising from the ejection ceased the moment the passenger left the position where he could be struck by defendant's trains, while the peril arising from the use of the intoxicating liquor continued in operation up to the time of the injury and contributed thereto, and yet 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.(Joyce on Intoxicating Liquors, sec. 421;Cruse v. Aden, 127 Ill. 231, 234, 20 N.E. 73, 3 L.R.A. 327.)* * * That the injury was not the proximate result of the ejection is demonstrated by the fact that the plaintiff was able to, and did in fact, leave the place of danger and subsequently of his own volition returned to a position of danger on defendant's tracks, and that but for plaintiff's action in so returning to a position of danger the accident would not have occurred.'

In the second place it is to be observed that in Fleckner v. Dionne(1949), supra, 94 Cal.App.2d 246, 210 P.2d 530, knowledge on the part of the tavernkeeper was, as here, expressly averred.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.³Its judgment stands, therefore, as a decision of a court...