Fleckner v. Dionne

• Decision Date: 20 October 1949
• Citation: 210 P.2d 530,94 Cal.App.2d 246
• Court: California Court of Appeals Court of Appeals
• Parties: FLECKNER et ux. v. DIONNE et al. Civ. 14142.

Page 530

210 P.2d 530

94 Cal.App.2d 246

FLECKNER et ux. v. DIONNE et al.

Civ. 14142.

District Court of Appeal, First District, Division 2, California.

Oct. 20, 1949.

Hearing Denied Dec. 15, 1949.

Joseph A. Bonacina, San Jose, for appellants.

Robt. L. Lamb, Robert A. Haughwout, San Francisco, for respondents.

GOODELL, Acting Presiding Justice.

The demurrer of respondent Pangracs, sued as Richard Roe, was sustained with leave to amend. Plaintiffs declined to amend, and judgment was entered that plaintiffs take nothing as against Pangracs, from which this appeal was taken.

The complaint is in three counts. It alleges that the defendants so negligently operated their Ford sedan on El Camino Real as to cause it to collide with the automobile driven by Wilbur G. Fleckner. The first count is based on bodily injuries sustained by the latter and the second on injuries to Mrs. Fleckner.

The third count is the one by which respondent Pangracs was brought into the case. It incorporates paragraph I of the first and second counts, which simply contains the usual allegations respecting fictitious defendants. It then alleges on information and belief that the five fictitious defendants owned, maintained, conducted and operated a tavern in Sunnyvale and that on the evening in question between 9 and 10 p. m. defendant Edward G. Dionne, a minor, was a parton of the tavern and purchased and was sold and given intoxicating liquors and was allowed to consume the same therein; that the fictitious defendants knew that he was a minor, and sold the intoxicating liquors to him while he was already under the severe influence of intoxicating liquors; that they knew also that he had upon or near the premises an automobile and would thereafter drive and propel it; that defendants and their servants, agents and employees 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 the sale and serving of intoxicating liquor to him, was and did constitute a negligent disregard of the rights of plaintiffs, to their damage.

It alleges that thereafter defendant Edward G. Dionne 'did in the said intoxicated condition and under a severe influence of liquor drive upon the said highway, unlawfully, negligently and recklessly and that he did propel his automobile in such a manner so as to cause the same to collide violently with the automobile in which plaintiffs above named were riding, all to their injuries and damage as hereinabove set forth.'

It alleges further, 'That all the said damage was a proximate and direct result of the unlawfulness, negligence, recklessness of the defendants, John Doe, Jane Doe, Richard Roe, First Doe Company, a copartnership and Second Doe Company, a corporation, as herein above set forth, which said negligence joined and co-operated with the unlawfulness, carelessness negligence and recklessness of the defendant, Edward G. Dionne, and produced the injuries and damages hereinabove alleged.'

In his demurrer to the third count respondent specifies that no cause of action is stated in that it is too remote and cannot be determined in what manner any actions of defendants were the proximate cause of the alleged injuries.

The question presented for decision sufficiently appears from the allegations of the third count and the ground of remoteness raised by the demurrer.

Appellants are not able to supply any authority in this state supporting their position. On the other hand whenever our courts have had occasion to say anything at all touching the question, the court's language has indicated a view such as that expressed in the decisions of other states where the question has arisen.

In Lammers v. Pacific Electric R. Co., 186 Cal. 379, 199 P. 523, 525, the court held that the expulsion of the plaintiff from the train was not the proximate cause of the injuries which he received some six hours later and three-quarters of a mile away. However, in that case the court did say: '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 whisky to the plaintiff would come nearer being a proximate cause of the injury than the ejection from the railway train. 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, § 421; Cruse v. Aden, 127 Ill. 231, 234, 20 N.E. 73, 3 L.R.A. 327.' (Emphasis added.)

In Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952, plaintiff sued a tavern owner for injuries sustained while within the defendant's tavern, where he had been sold intoxicating liquor while obviously intoxicated. He alleged that he fell from a stool to the floor and was then dragged by the defendant and an employee. The court said, 61 Cal.App.2d at page 809, 143 P.2d at page 955, '* * * 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. 30 Am.Jur., sec. 611. If our view be correct it becomes apparent that plaintiff has alleged both an actionable and nonactionable wrong, and the defendants' special demurrer was properly sustained.' The nonactionable wrong was the sale of the liquor, while the actionable wrong was the dragging of plaintiff across the floor.

In neither of these two cases was the language which we have quoted necessary to the decision. However, what the court says in each of them is in accord with the holdings in other jurisdictions on the question, Whether on not the sale of the liquor is a proximate cause.

The opinion in the Lammers case qualifies its statement respecting 'uniform' holding by saying 'in the absence of statute to the contrary'. In this connection many of the states have enacted Civil Damage Acts which greatly extend and enlarge the liability of saloon-keepers and tavern owners. Such legislation is discussed in Joyce on Intoxicating Liquors, sections 420-497. Illinois, for instance, has had a Dramshop Act, Ill.Rev.Stat.1949, c. 43, § 1 et seq., for many years, which repeatedly has come before its courts. A case involving that act was Hyba v. C. A. Horneman, Inc., 302 Ill.App. 143, 23 N.E.2d 564, cited in Hitson v. Dwyer, supra where the court said: '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.' Numerous cases say the same thing and it is needless to cite them.

California has no Civil Damage Act.

In Seibel v. Leach, 233 Wis. 66, 288 N.W. 774, 775, the action was for property damage and personal injuries. One of the defendants, Landerman, was a tavern owner who sold intoxicants to Leach. The latter while intoxicated drove his car into plaintiff's car. Landerman's demurrer to the complaint was sustained, and in affirming the judgment the court said: '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 decision in Demge v. Feierstein, supra [222 Wis. 199, 268 N.W. 210], sets forth the law controlling in the case at bar.'

The facts of that case and of this are substantially the same.

Seibel v. Leach was, as this is, an action on behalf of a third person. Demge v. Feierstein, 222 Wis. 199, 268 N.W. 210, 212, supra, was not such a case but was brought by a widow whose husand had been sold intoxicating liquor by the Feiersteins, tavern owners, after she had given them oral notice not to let her husband have any more liquor. After leaving the tavern he lost control of his car and was fatally injured. The general demurrers of the tavern owners (and their bondsman) were sustained, and in affirming the judgment the court said: 'The cases are overwhelmingly to the effect that there is 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, c. 13, § 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 et al., 105 Neb. 809, 182 N.W. 364, 365.'

Appellants argue that the Alcoholic Beverage Control Act, Gen.Laws, Act 3796, makes it unlawful to sell intoxicating liquor to a minor or to a person already intoxicated. It is alleged in appellants' complaint herein that defendant Dionne was both. In Waller's Adm'r v. Collinsworth, 1911, 144 Ky. 3, 137 S.W. 766, 44 L.R.A.,N.S., 299, Ann.Cas.1913A, 510, the sale of liquor upon which the action was based was illegal because (a) made in local option territory (b) to a minor. The action was brought by the administrator of a decedent who had been shot by a companion after both men had become intoxicated in Collinsworth's store on liquor which he had sold them. The constitutional and statutory provisions under which the action was prosecuted fixed liability only if the wrongful act was the proximate cause of the injury or death. The court held that the illegal sale of the liquor was not the proximate cause of Waller's death.

Further, on the question of the illegality of the sale, appellants rely on Dunlap v. Wagner, 85 Ind. 529, 44 Am.Rep. 42, which was likewise relied on...