Halvorson v. Birchfield Boiler, Inc.

• Citation: 458 P.2d 897,76 Wn.2d 759
• Decision Date: 25 September 1969
• Docket Number: No. 39474,39474
• Court: United States State Supreme Court of Washington
• Parties: Oliver E. HALVORSON and Margaret M. Halvorson, his wife, Appellants, v. BIRCHFIELD BOILER, INC., and Alvin T. Davies and Jane Doe Davies, his wife, doing business as Ace Furnace and Steel Company, Respondents.

Page 759

76 Wn.2d 759

458 P.2d 897

Oliver E. HALVORSON and Margaret M. Halvorson, his wife, Appellants, v. BIRCHFIELD BOILER, INC., and Alvin T. Davies and Jane Doe

Davies, his wife, doing business as Ace Furnace

and Steel Company, Respondents.

No. 39474.

Supreme Court of Washington, En Banc.

Sept. 25, 1969.

Rehearing Denied Dec. 8, 1969.

Reed, McClure & Moceri, Thomas W. Huber, Seattle, for appellants.

Merrick, Douglas & Burgess, F. Ross Burgess, Seattle, for respondents.

NEILL, Judge.

This appeal by plaintiffs raises the question of whether an employer is liable to a third party who is injured by an employee who has become intoxicated at a company Christmas party.

On December 24, 1964, a company Christmas party was given by defendants Birchfield Boiler, Inc., and Ace Furnace and Steel Company for their employees and limited other invitees. The party began shortly after noon on the employers' premises. The employers furnished food and refreshments, including alcoholic beverages. The businesses had closed at noon that day and employees were not obliged to attend the party. Those who did attend were free to come and go at will. Russel D. Wolf, an employee of Birchfield Boiler attended the party at which he allegedly became intoxicated. Mr. Wolf left the party at about 2 p.m. He dropped off a fellow worker and, while driving home, struck and severely injured the plaintiff Oliver Halvorson. At the time he was struck, plaintiff was standing at the rear of his parked car in the parking lane of a Tacoma street.

Plaintiffs allege that the accident was caused by the condition of Mr. Wolf, who was so intoxicated that he was incapable of operating his automobile, and that he had become intoxicated at the Christmas party given by the defendants.

Plaintiffs further allege that the defendants were guilty of negligence because they furnished intoxicants to Mr. Wolf, knowing he was intoxicated and unable to properly operate a motor vehicle; and knowing he had his driver's license revoked as the result of a prior accident. They further allege that defendants allowed Mr. Wolf to continue to consume liquor with knowledge that he was an alcoholic; and then permitted him to drive away from the party in his automobile.

Shortly after the commencement of the jury trial, the court granted defendants' motion to dismiss on the ground that the complaint and opening statement failed to state a claim upon which relief could be granted.

The trial court relied on Jansen v. West Coast Wholesale Drug Co., 47 Wash.2d 825, 289 P.2d 718 (1955), Hall v. Budagher, 76 N.M. 591, 417 P.2d 71 (1966), and Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450, 54 A.L.R.2d 1137 (1955), in its ruling of dismissal.

A motion to dismiss based on the failure of the complaint and the opening statement to state a claim upon which relief can be granted, can be granted only where it is clear beyond doubt from reading the complaint, hearing the opening statement, and considering offers of proof that plaintiffs cannot prove facts which would entitle them to relief. See Hofto v. Blumer, 74 Wash.Dec.2d 328, 444 P.2d 657 (1968). Accordingly, we must accept each of plaintiff's allegations, claims and offers of proof as verities for the purpose of viewing the correctness of the trial court's ruling of dismissal.

By Laws of 1955, ch. 372, the legislature repealed the 'Dramshop Act' which provided

Every husband, wife, child, parent, guardian, employe, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication of such person, for all damages sustained, and the same may be recovered in a civil action in any court of competent jurisdiction. On the trial of such action, the plaintiff or plaintiffs must prove that such intoxicating liquors were sold under circumstances sufficient to lead a man of ordinary intelligence to believe that such sale would probably result in intoxication. * * *

RCW 4.24.100 (derived from Laws of 1905, ch. 62).

At the time the dramshop statute was repealed, Hansen v. West Coast Wholesale Drug Co., Supra, was pending before this court. The defendants had given a Christmas party at which one Mr. Bear was a guest. Bear allegedly became intoxicated at the party and, after leaving it, was involved in an automobile accident with Hansen who later died as a consequence of the accident. The trial court granted the defendant's demurrer on the ground that the complaint did not state a cause of action, basing its ruling on the theory that the liability fixed by the statute arose only from a sale of intoxicating liquor. While the case was pending on appeal, the legislature repealed the statute and this court held the issue to be moot since plaintiff's right of action had been abolished.

Consequently, if plaintiffs are to establish liability on the part of the defendants, it must be based on a theory of common law negligence.

Hall v. Budagher, Supra, and Cole v. Rush, Supra, are representative of the general rule at common law which is:

(I)t is not a tort to either sell or give intoxicating liquor to ordinary ablebodied men, and it has been frequently held that, in the absence of statute, there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished. The reason usually given for this rule is that the drinking of the liquor is the proximate cause of the injury, not the furnishing of it.

(Footnotes omitted.) 30 Am.Jur. 821 Intoxicating Liquors § 520 (1958).

It is generally held that there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished, even though the liquor was sold or given to one in violation of a law other than under a civil damage act, so long as the person to whom the liquor was sold or given was not in such a state of helplessness or debauchery as to be deprived of his will power or responsibility for his behavior.

(Footnotes omitted.) 30 Am.Jur. 821 Intoxicating Liquors § 521 (1958).

The rationale of a majority of the courts reviewing this issue is typified by the language of the Maryland Supreme Court:

(T)he common law knows no right of action against a seller of intoxicating liquors, as such, for 'causing' intoxication of the person whose negligent or wilful wrong has caused injury. Human beings, drunk or sober, are responsible for their own torts. The law (apart from statute) recognizes no relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor.

State for Use of Joyce v. Hatfield, 197 Md. 249, 254, 78 A.2d 754 (1951).

Such rationale also applies to the donor who gives intoxicating liquor to an ordinary able-bodied man. See 75 A.L.R.2d 833 (1961), and cases cited therein.

The cases supporting the general common law rule hold that the sale or furnishing of the intoxicant is not the proximate cause of the injury as a matter of law; whereas, courts which have departed from that strict rule have said that the causal connection and the foreseeability element, both of which must be established before liability attaches, are questions of fact for the trier of the facts. E.g., see Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900 (1965); Waynick v. Chicago's Last Dep't Store, 269 F.2d 322, 77 A.L.R.2d 1260 (7th Cir. 1959); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821 (1959).

Plaintiffs draw our attention to Brockett v. Kitchen Boyd Motor Co., 264 Cal.App.2d 69, 70 Cal.Rptr. 136 (1968), in which the California Court of Appeals held an employer liable for damages to third persons who were injured in an automobile accident caused by an employee of the defendant, after the employee had become intoxicated at a Christmas party given by the defendant. In that case, the court recognized the general common law rule stated above, but found that there was a special relationship between the employer and employee; that the employer had Directed the drunken Minor employee to his car; and Instructed him to drive home. Thus the employer had, in effect, placed himself in a position of accepting responsibility and was in control of the situation. Liability was found on the basis that the employer had actually induced the improper operation of the automobile. We find no such relationship or control in the instant case.

Plaintiffs state in their brief that they have no quarrel with these common law rules, but contend that Mr. Wolf was not an 'ordinary able-bodied man.' They assert that the defendants knew Mr. Wolf had a drinking problem; that he, therefore, was not a strong and able-bodied man and was incapable of voluntarily resisting becoming intoxicated.

We do not think that these allegations create the distinction suggested by plaintiffs. Mr. Wolf is not a person under legal disability nor has he been interdicted uner RCW 71.08. There may be good reason to place the licensed vendor of liquors under a burden suggested by plaintiffs, but we need not consider such a possibility in this case. Here we have a social event involving many people where liquor is available, but not sold in the sense of an individual order or procurement to or from a person in a position to adjudge the physical condition of each guest. This difference between commercial vending of intoxicants and the social or quasi-social furnishing of liquor is aptly recognized in Rappaport v. Nichols, Supra, 31 N.J. at 205, 156 A.2d at 10:

We are fully mindful that policy considerations and the balancing of the conflicting interests are the truly vital factors in the molding and application of the common law principles of negligence and proximate causation. But we are...