Ibach v. Jackson

• Decision Date: 31 July 1934
• Citation: 35 P.2d 672,148 Or. 92
• Parties: IBACH v. JACKSON.
• Court: Oregon Supreme Court

35 P.2d 672

148 Or. 92

IBACH v. JACKSON.

Supreme Court of Oregon

July 31, 1934

Rehearing Denied Sept. 11, 1934.

Department 1.

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Action for wrongful death by Marion Ibach, administratrix of the estate of Genevieve M. Callahan, deceased, against Harry Jackson. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Alton J. Bassett, of Portland (Manning & Harvey and Frank E. Manning, all of Portland, on the brief), for appellant.

Barnett H. Goldstein, of Portland, for respondent.

KELLY Justice.

On December 1, 1932, plaintiff filed her complaint, and on December 2, 1932, the summons was served upon defendant. It is alleged in the complaint that on or about July 28, 1931 Genevieve M. Callahan died in Multnomah county, Or., and thereafter plaintiff was appointed and ever since has been administratrix of her estate; and that deceased left as her next of kin and sole heir a daughter now about six years of age.

In paragraph III of said complaint, it is further alleged "On or about July 27, 1931, the defendant in Portland, Oregon, wrongfully and unlawfully gave and served the said Genevieve M. Callahan large quantities of intoxicating alcoholic liquors for beverage purposes, and induced her, the said Genevieve M. Callahan, to drink the same in large quantities sufficient to and which did cause her to become ill and to suffer from acute alcoholism, thereby causing her death on July 28, 1931, in Multnomah County, Oregon.

"IV. That as a direct and approximate result of said wrongful and unlawful acts, the estate of the said Genevieve M. Callahan has suffered damages in the sum of $10,000.00."

On December 10, 1932, defendant filed an answer to said complaint.

On September 12, 1933, which it will be noted is more than nine months after the answer had been filed and more than two years after the alleged cause of action had accrued, defendant filed a motion for an order permitting and allowing him to withdraw his answer and file a demurrer.

On September 15, 1933, an order was made permitting the withdrawal of said answer and the filing of a demurrer to said complaint.

On September 18, 1933, a demurrer was filed based on the following grounds:

1. That the court has no jurisdiction of the subject to the action.

2. That the plaintiff has no legal capacity to sue.

3. That there is a defect of parties plaintiff.

4. That the complaint does not state facts sufficient to constitute a cause of action.

On October 9, 1933, said demurrer was sustained and plaintiff allowed five days thereafter within which to further plead.

On October 17, 1933, plaintiff filed an amended complaint containing the same allegations as those set forth in her original complaint, except that paragraph III thereof was changed and paragraph IV was added, which said paragraphs III and IV of said amended complaint are as follows:

"III. That on or about the 27th day of July, 1931, the defendant enticed the said Genevieve M. Callahan to his room in a hotel in Portland, Oregon; that he then and there wilfully, unlawfully, and wrongfully forced the said plaintiff's intestate to partake of intoxicating liquors to such an extent that she lost her sense of reason and volition and forced her to continue to partake of said intoxicating liquors until she reached the state of acute intoxication, well knowing that she was unable to withstand the use of intoxicating liquors, and while in a state of intoxication and unable to control her own action and movements and in a manner unknown to plaintiff but known to the defendant the said Genevieve M. Callahan, while so suffering from said acute alcoholism brought on by the wrongful acts of the defendant as hereinbefore set forth, sustained injuries to her right ear, left arm, left hand, left leg, and fractured both nasal bones in her nose, and thereafter, the defendant carelessly and negligently left the said Genevieve M. Callahan while she was in said condition in said hotel room alone, where she died sometime during the night, as a direct and proximate result thereof.

"IV. That the death of said Genevieve M. Callahan was directly caused by said wrongful, wilful, unlawful, careless, and negligent acts of said defendant, to-wit:

"(1) That the defendant wrongfully, wilfully, and unlawfully forced said Genevieve M. Callahan to drink intoxicating liquors and continue to do so after defendant well knew that she was unable to drink more without probable injury resulting to herself and well knew that the said Genevieve M. Callahan could not consume more without probable illness or injury resulting therefrom.

"(2) That the defendant under the circumstances carelessly and negligently left the said Genevieve M. Callahan in said hotel room alone with the knowledge that she was intoxicated, ill and in a dangerous condition requiring care and attention.

"(3) That the said defendant carelessly and negligently failed to exercise the care necessary under the circumstances to protect the said Genevieve M. Callahan."

On October 21, 1933, defendant filed a motion to strike said amended complaint from the files on the ground that it contains more than one cause of action not separately stated, and that it attempts to set up a new and distinct cause of action from that alleged in the original complaint.

On said October 21, 1933, defendant also filed a demurrer to said amended complaint.

On November 4, 1933, said motion to strike plaintiff's amended complaint from the files was allowed.

On November 18, 1933, plaintiff having failed and refused to further plead, an order of dismissal and a judgment in favor of defendant for costs and disbursements were entered.

Error is assigned because of the orders sustaining the demurrer to the original complaint and the motion to strike the amended complaint.

There is no statute making it unlawful merely to give an adult a drink of intoxicating liquor. Section 15-105, Oregon Code 1930, by its terms, among other things, declares it to be unlawful to "sell, give away or barter any intoxicating liquor," etc. This has been held to refer to an ostensible gift which in fact is a sale, and not to the character of transaction set forth in the complaint. State v. Runyon, 62 Or. 246, 124 P. 259.

There being no statute making it an offense, and it being no offense under the common law, it becomes a question whether under the facts delineated in the amended complaint, wrongful acts by defendant have been presented upon which decedent, if living, could base an action for damages.

Where plaintiff, or plaintiff's decedent, voluntarily participates in the wrongful act and by such participation contributes to the cause of the damage sustained, an action cannot be maintained.

The original complaint failed to state facts negating such participation by plaintiff's decedent with sufficient clarity, distinctness, and particularity to withstand the strict construction which a demurrer invokes. While it would have sufficed after issue joined, we think no error was committed by the learned trial judge in sustaining the demurrer thereto and permitting plaintiff to file an amended complaint.

It is argued by defendant that plaintiff's original complaint was predicated upon some alleged violation of the liquor laws. While it is deducible therefrom that defendant violated the statute then in effect (section 15-105, Oregon Code 1930) prohibiting possession of intoxicating liquor, that deduction also attends the amended complaint. In that respect, this case is to be distinguished from those cases where it is held that merely holding a bottle of liquor for the purpose only of taking a drink therefrom does not constitute unlawful possession. State v. Williams, 117 Or. 238, 243 P. 563; State v. Fouts, 129 Or. 115, 276 P. 683.

In the case at bar, both complaints, one by direct reference, the other by obvious inference, disclose that defendant knowingly had large quantities of intoxicating liquor in his possession. In that way, and to that extent only, we concur with defendant in his construction of these pleadings to the effect that in part they are predicated upon the statute effective for the purposes of this case which prohibited the possession of liquor.

Defendant suggests that the statute just cited was repealed without a saving clause by chapter 1, p. 13, Laws 1933 (1st Sp. Sess.), and that any right of action thereon was thereby terminated and annulled. Section 14-1008, Oregon Code 1930, reads: "14-1008. Saving clause-Acts amending or repealing criminal statutes.-In all cases hereafter occurring where a criminal statute or a part of a criminal statute shall be either amended or repealed, the criminal statute or the part of a criminal statute so amended or repealed shall be and remain in force for the purpose of authorizing the prosecution, indictment, trial, conviction and punishment of all persons who shall have violated such criminal statute or part of a criminal statute so amended to repealed prior to the taking effect of the act so amending or repealing such criminal statute or part of a criminal statute."

This section has the same effect as a saving clause in the repealing act.

Defendant also suggests that the original complaint discloses an attempt to base this action upon the provisions of section 15-708, Oregon Code 1930, which provides that: "Any person who shall *** give to any intoxicated person or habitual drunkard *** intoxicating liquors shall be liable for all damage resulting *** therefrom at the suit or action of the wife, husband, parent or child of such intoxicated person." We think that this suggestion cannot be approved. The allegation as to the surviving daughter of...