Meade v. Freeman

Citation93 Idaho 389,462 P.2d 54
Decision Date28 August 1969
Docket NumberNo. 10249,10249
PartiesZona Marie MEADE, surviving widow of Melford O. Meade, Deceased, Richard Meade and Denise Irene Meade, minors, by Zona Marie Meade, their Guardian, and Cynthia Meade, Plaintiffs-Appellants, v. John E. FREEMAN, Pedro Arana, and C. E. Celestine, Defendants-Respondents.
CourtUnited States State Supreme Court of Idaho

Ariel L. Crowley, Idaho City, for appellants.

Coughlan & Imhoff, Boise, for respondents.

SHEPARD, Justice.

This case arrives here procedurally as a result of the dismissal of the complaint of plaintiffs-appellants. Defendants Arana and Celestine moved for summary judgment. The court construed the motion as one for dismissal (I.R.C.P. 12(b)(6)) and issued a memorandum decision and order of dismissal. The dismissal did not apply to defendant Freeman and the case is in abeyance as to him, pending the outcome of this appeal. Appellants assign such dismissal as error. For the purposes of the motion and this appeal, it is axiomatic that the well pleaded allegations of the complaint are deemed admitted. Walenta v. Mark Means Co., 87 Idaho 543, 394 P.2d 329 (1964).

The material allegations of the complaint in substance are: Arana and Celestine are owners and operators of premises licensed for the retail sale of liquor and located in Garden City, Idaho. The defendant Freeman entered the premises while he was obviously, actually and apparently intoxicated. The defendants, either personally or through employees, served liquor to Freeman, well knowing or having good reason to know that Freeman upon leaving the premises would drive an automobile upon the highway. Freeman departed the premises and while still intoxicated negligently caused and was involved in an automobile accident in which one Meade was killed. Plaintiffs are the surviving widow and children of Meade and bring the action under the authority of Idaho's wrongful death statute, I.C. § 5-311. The serving of liquor to Freeman while he was intoxicated was in violation of our criminal statute. I.C. § 23-929.

The case then presents no factual issues to the court and neither party contends that there are factual issues. The facts are classic in their simplicity, but the legal questions presented are exceedingly com-plex and of first impression in Idaho. The trial judge concluded in his well reasoned memorandum decision that to support the plaintiffs' contentions and theory would require a change in the common law. He states that such is not the province of a district court and should be left to the decision of this Court.

I.C. § 73-116, provides:

'The common law of England, so far as it not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule or decision in all courts of this state.'

In earlier years many states adopted statutes commonly known as dram shop acts, which placed liability in various degrees upon vendors of intoxicants for the torts of their customers. Some states made the liability almost absolute while others established liability only when the vendor sold to an already intoxicated customer or to a minor. With the ebb of the temperance crusades and the repeal of that noble experiment called Prohibition, some states repealed their dram shop acts. As of 1966 some 21 states still maintained such statutes.

Idaho at one time did have a limited form of dram shop act. First passed in 1891 (S.L.1891, § 5, p. 34), it appeared as Idaho Political Code (1901), Ch. 58, § 1507. 1 In slightly amended form, it became Revised Codes of Idaho (1908), Ch. 33, § 1511, and remained in effect until 1915, when the entire state of Idaho adopted prohibition. S.L.1915, Ch. 28, §§ 1, 2, 3. 2 The prohibition statutes repealed by implication those statutes which previously had treated purveyance of intoxicants for beverage purposes as legitimate business, among which was the dram shop act. This fact is related to in a note preceding Compiled Laws (1918), Title 20, Ch. 116, at 662. 3 Since that time, no dram shop legislation has existed in Idaho.

As said by Llewellyn, on the common law in general:

'Whatever one may say in praise of Our Lady of the Common Law (to whom I do bow), clarity and precise outline of her rules of law are not the chief jewel in her crown.' Llewellyn, the Common Law Tradition.

However, it is quickly discerned that at common law no cause of action existed of the type for which appellants argue here. State for Use of Joyce v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951); Lee v. Peerless Insurance Co., 248 La. 982, 183 So.2d 328 (1966); Cowman v. Hansen, 250 Iowa 358, 92 N.W.2d 682 (1958); Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530 (1949); Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450, 54 A.L.R.2d 1137 (1955); 48 C.J.S. Intoxicating Liquors § 430, p. 716 (1947, 1968 Supp.); 30 Am.Jur. 821, Intoxicating Liquors § 521 (1958, 1968 Supp.); Anno. 130 A.L.R. 357; Anno. 75 A.L.R.2d 833. Even those cases relied upon by appellant clearly state that the common law did not authorize such cause of action, but those courts then proceeded to deal with statutes interpreted as changing the common law. Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821 (1959); Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18 (1968); Dissenting opinion, Fleckner v. Dionne, supra.

Appellants argue that liability of the type sought here should be imposed on a commercial vendor of intoxicants for a number of reasons. They argue that a combination of Idaho statutes together with certain decisions of this Court in the field of torts, when blended with decisions of a small minority of states, amalgamate to produce a liability which was unknown at common law. Appellants contend that our legislature changed the common law when it enacted our wrongful death statute. I.C. § 5-311. They further propose that decisions of this Court dealing with multiple causation, Pigg v. Brockman, 85 Idaho 492, 500, 381 P.2d 286 (1963), and cases cited therein; Lindhartsen v. Myler, 91 Idaho 269, 420 P.2d 259 (1966), and negligence per se, Petersen v. Parry, 92 Idaho 647, 448 P.2d 653 (1968); Riley v. Larson, 91 Idaho 831, 432 P.2d 775 (1967) Chard v. Bowen, 91 Idaho 521, 427 P.2d 568 (1967); Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768 (1966); Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963); Brixey v. Craig, 49 Idaho 319, 288 P. 152 (1930), combine to establish: (1) that the act of serving liquor to one already intoxicated is violative of a statute and hence negligence per se; (2) that there can be more than one proximate cause and therefore the consuming and serving of intoxicants can be multiple causes, and the consumption is not necessarily an intervening cause which shields the vendor. On supervening cause, see Lundy v. Hazen, supra; Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964); Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960).

Appellants' theory runs squarely in the face of almost all authority. It is nearly universally held, State for Use of Joyce v. Hatfield, supra; Lee v. Peerless Insurance Co., supra; Cowman v. Hansen, supra; Fleckner v. Idonne, supra; Cole v. Rush, supra; 48 C.J.S. Intoxicating Liquors § 430, p. 716 (1947, 1968 Supp.); 30 Am.Jur. 821, Intoxicating Liquors § 521 (1958, 1968 Supp.); Anno. 130 A.L.R. 357; Anno. 75 A.L.R.2d 833, that it is the consumption of intoxicants that constitutes the proximate cause of damage to third parties resulting from the tortious or unlawful acts of the consumer and that the vending of intoxicants is too remote to be considered a proximate cause. Put another way, the common law holds that it is not actionable negligence to serve intoxicants to an able bodied man. Cruse v. Aden, 127 Ill. 231, 20 N.E. 73, 3 L.R.A. 327 (1889); Seibel v. Leach, 233 Wis. 66, 288 N.W. 774, 6 N.C.C.A. (N.S.) 629 (1939); 2 W. Woolen and W. Thornton, The Law of Intoxicating Liquors 1837, § 1029 (2 v., 1910); cf. Gardner v. Day, 95 Me. 558, 50 A. 892 (1901); Kraus v. Schroeder, 105 Neb. 809, 182 N.W. 364 (1921); see also Woody v. Coenan, 44 Iowa 19 (1876).

Appellants advert to the theories of 'directly traceable consequences' and 'foreseeability' which combine in the so-called 'risk rule' of legal cause. Dewey v. Keller, supra. See also Anno. 155 A.L.R. 157; 100 A.L.R.2d 942; 'Impact of the Risk Theory on the Law of Negligence,' 63 Harv.L.Rev. 671 (1950). Again, however, we point out that we are bound by the common law (in the absence of statute) stating that it is the consumption not the vending of intoxicants which is the proximate cause.

Appellants then point to our statutes controlling the sale of intoxicants, I.C. §§ 23-901, 23-929. 4 They theorize that the enactment of those statutes changes the common law alluded to above and call attention to certain cases sustaining their theory. This theory is the main thrust of appellants' argument and therefore the cited cases are worthy of review.

Two of the cases cited by appellants, Waynick v. Chicago's Last Department Store, 269 F.2d 322, 77 A.L.R.2d 1260 (7th Cir. 1959); and Colligan v. Cousar 38 Ill.App.2d 392, 187 N.E.2d 292 (1963), involved extraterritorial applications of Illinois' dram shop act and hence are not controlling nor relevant here other than to illustrate the lengths to which a minority of courts will reach out to establish liability. See, however, a partial repudiation in LeGault v. Klebba and Mazure, 7 Mich.App. 640, 152 N.W.2d 712 (1967).

The Florida case of Davis v. Shiappacossee, 155 So.2d 365 (Fla., 1963), involved the sale of beer and whisky to minors seated in an automobile which was analogized by the court as a dangerous instrumentality as contrasted with the establishment of an overall liability imposed on purveyors of intoxicants. See, however, a restriction in Reed v. Black Caesar's Forge Gourmet Restaurant, Inc., 165 So.2d 787 (Fla.App., 1964).

We arrive at consideration of the two c...

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