Collier v. Stamatis

• Citation: 63 Ariz. 285,162 P.2d 125
• Decision Date: 24 September 1945
• Docket Number: Civil 4736
• Parties: THELMA COLLIER, Appellant, v. MILTON STAMATIS, Appellee
• Court: Supreme Court of Arizona

162 P.2d 125

63 Ariz. 285

THELMA COLLIER, Appellant, v. MILTON STAMATIS, Appellee

Civil No. 4736

Supreme Court of Arizona

September 24, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.

Judgment affirmed.

Mr. V L. Hash, for Appellant.

Messrs Kramer, Morrison, Roche & Perry, for Appellee.

Kelly Superior Judge. Stanford, C. J., and Morgan, J., concur. LaPrade, J., being disqualified, the Honorable Henry C. Kelly, Judge of the Superior Court of Yuma County, was called to sit in his stead.

OPINION

Kelly, Superior Judge.

This is an appeal by plaintiff from a final order dismissing her complaint upon defendant's motion, the ground assigned being that it fails to state a cause of action.

To recapitulate the allegations of the complaint briefly, but with no omission affecting the merits, they are: That the defendant, a licensed tavern keeper, unlawfully sold a tall drink of highly intoxicating liquor to a child of the age of fifteen years; that the child drank of the liquor and immediately became intoxicated; that her intoxication led forthwith to her detention by officers of the law as a juvenile delinquent; that the plaintiff, as the mother of said child and having her sole custody, has been deprived inter alia of the services of said child. Her prayer is for both compensatory and punitive damages.

As an incident to the appeal, and because the trial court struck from the complaint the prayer for exemplary damages, appellant asks also for an advisory opinion as to whether under the facts exemplary damages may be assessed.

There is disagreement between counsel for appellant and appellee as to the precise basis for the order of dismissal, or, more precisely, as to whether the order itself or the reason assigned for it is the subject of the appeal. The reasons assigned are surplusage; it is only the correctness of the judgment and not of the process of reasoning by which it was come to that will be considered.

The material allegations of the complaint and all reasonable intendments arising from them are presumed to be true. By them it clearly appears that the sale was unlawful; that at least consequentially thereto the plaintiff has suffered a damage which the law recognizes as compensable. The action being founded upon tort, the substantial question presented for solution by this appeal is one as to whether, upon the facts as stated in the complaint, an issue of fact is tendered and could be submitted to court or jury for determination, under established principles of liability for tort, that the wrongful act in making the sale was a proximate cause of the resultant damage.

For the appellant many cases are cited which hold that the violation of law is per se negligence, and actionable when damage results therefrom. There can be no dissent from this principle, very aptly set forth in Salt River Valley Water Users Ass'n v. Compton, 39 Ariz. 491, 8 P.2d 249, 251:

"Actionable negligence may be of two kinds, either statutory or common law. Where a valid statute, enacted for the public safety, or governmental regulations made in pursuance thereof, provide that a certain thing must or must not be done, if a failure to comply with the regulations is the proximate cause of injury to another, such failure is actionable negligence per se" (citing cases).

Nothing could be more apparent than that the intoxication as here complained of would not have occurred if the sale had not been made. But this does not answer the question as to whether this act is the proximate cause of the injury, or whether as a cause it is not superseded by the voluntary act of the purchaser in imbibing the drink.

Both parties to this appeal rely strongly upon the Arizona case of Pratt v. Daly, reported in 55 Ariz. 535, 104 P.2d 147, and 130 A. L. R. 341, the appellee particularly stressing the dissent therein by Judge Ross. The opinions in that case are indeed scholarly in setting forth both the majority and minority views, and a clear understanding of them will almost wholly dissipate every doubt as to the proper disposition of the instant case.

The dissenting opinion sets forth the rule followed with singular unanimity by the courts that when damage arises from voluntary intoxication the seller of the intoxicant is, at common law, not liable in tort for the reason that his act is not the efficient cause of the damage. The proximate cause is the act of him who imbibes the liquor. When a remedy exists against the liquor dealer it is because his liability is established by legislation usually referred to as Civil Damage Acts. The validity of that position was explicitly recognized by the majority opinion, but it was held that under the facts with which they were dealing, and by analogy from the common law liability of the dispenser of habit-forming and will-destroying drugs, the tavern keeper was liable at common law for his tort in dispensing the liquor to one who, by reason of the destruction of his will or power to resist the temptation of drink was incapable of voluntary action. In this view there was no break in the chain of causation from the sale to the damage. As an efficient cause the act of drinking was merged into the act of sale. Upon this narrow ground, supported by extremely close reasoning, rests the decision and the liability of the seller.

The plaintiff appellant herein urges the applicability of this holding to the facts of her case, with the addition that the violation of the Statute, (Section 72-113, Arizona Code Annotated 1939), making it a high misdemeanor to sell intoxicating liquor to a minor is negligence per se and makes the seller liable as for tort. It is reasoned that this statute was enacted...