Nolan v. Morelli

• Decision Date: 17 January 1967
• Citation: 154 Conn. 432,226 A.2d 383
• Court: Connecticut Supreme Court
• Parties: Josephine NOLAN, Administratrix (ESTATE of James NOLAN) v. Dolindo MORELLI et al.

Page 383

226 A.2d 383

154 Conn. 432

Josephine NOLAN, Administratrix (ESTATE of James NOLAN) v. Dolindo MORELLI et al.

Supreme Court of Connecticut.

Jan. 17, 1967.

William F. Mangan, Jr., and Alan A. Green, New Britain, with whom was Thomas C. Marshall, for appellant (plaintiff).

Bertrand Quinto, Hartford, with whom, on the brief, was Jeffrey M. Mines, Hartford, for appellee (defendant Morrocco).

Frank DeNezzo, Hartford, with whom, on the brief, was Gerald R. Swirsky, Hartford, for appellees (defendants Morelli and others).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ. KING, Chief Justice.

The plaintiff, as administratrix of the estate of her deceased husband, James Nolan, instituted this action, in six counts, under our wrongful death statute (General Statutes § 52-555) for the recovery of damages for his death. The basic claim is that the death was caused by the decedent's intoxication, which in turn was caused by the defendants' sales to him of intoxicating liquor, and that this intoxication caused him so to operate his motor car as to collide with a tree, as a result of which he sustained the injuries from which he died the same day.

The first three counts of the complaint are directed against the defendants Dolindo Morelli and Palade Morelli, as the proprietors and operators of the Meadowland Restaurant, in New Britain. Counts four, five and six of the complaint are directed against the defendant Carmen Morrocco, as the proprietor and operator of the Cameo Restaurant, in Bristol.

Since the first, second and thrid counts against the Morellis are, for the purposes of this appeal, respectively identical with the fourth, fifth and sixth counts against Morrocco, only counts one, two and three of the complaint need be discussed.

The plaintiff, in this suit under our wrongful death statute, stands in the shoes of the decedent and can recover only if the decedent, had his injuries not proven fatal, could himself have recovered. Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668, 136 A.2d 918, 63 A.L.R.2d 1378. Thus, the question to be determined is whether, in any one of the three counts of the complaint, a cause of action is stated which the decedent himself, had he lived, could have maintained.

I

The first count of the complaint purports to state a cause of action under General Statutes (Rev. to 1962) § 30-102, our civil damage or dram shop act, hereinafter referred to as the Act. ¹

By its express terms, the Act authorizes a recovery, where its conditions are fulfilled, by one injured in person or property as a consequence of the intoxication of another person to whom intoxicating liquor has been sold while he was intoxicated, but it clearly does not authorize recovery for injuries or property damage sustained by the intoxicated purchaser himself. Lavieri v. Ulysses, 149 Conn. 396, 400, 180 A.2d 632, 98 A.L.R.2d 1096; Pierce v. Albanese, 144 Conn. 241, 250, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21.

Since the decedent was the intoxicated person in this case and he himself had no right of action under the Act, there was none which could survive to his administratrix. Consequently, the first count, based on the Act, states no valid cause of action in favor of this plaintiff, and the court was not in error in sustaining the defendants' demurrer to that count on the foregoing ground.

II

The second count purports to state a common-law action in tort based on negligence and intentional wrong in selling intoxicating liquor to the decedent, and in encouraging him to purchase intoxicating liquor, while he was intoxicated or which caused him to become intoxicated. The plaintiff claims that if, as we have held, she has no right of action under the Act, she has or should have a right of action at common law.

At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it. 30 Am.Jur., Intoxicating Liquors, §§ 520, 521; 48 C.J.S. Intoxicating Liquors § 430, p. 716; see note, 54 A.L.R.2d 1152. Although this court has not had occasion directly to approve the common-law rule, it has given strong intimation of a recognition of the rule in Pierce v. Albanese, supra, 249, 129 A.2d 606, and London & Lancashire Indemnity Co. of America v. Duryea, 143 Conn. 53, 59, 119 A.2d 325. And the Superior Court directly adopted the common-law rule in Noonan v. Galick, 19 Conn.Sup. 308, 310, 112 A.2d 892.

In Connecticut, as far back as 1872, it came to be felt that the foregoing common-law rule was to some extent overly harsh and should be modified by statute. Such statutes, which were enacted in numerous other states, came to be known as civil damage or dram shop acts. See Staples v. Lucas, 142 Conn. 452, 456, 115 A.2d 337, 55 A.L.R.2d 1282. Connecticut's first such statute is found in § 8 of chapter 99 of the Public Acts of 1872, and its enactment indicated a knowledge, by the General Assembly, of the foregoing common-law rule. The 1872 act gave a cause of action against a seller who sold intoxicating liquor to a person who thereby became intoxicated for 'any damage or injury to any other person, or to the property of another' done by the intoxicated person 'in consequence' of his intoxication. Thus, this act, in situations where it was applicable, displaced the common-law rule that the proximate cause of intoxication was not the furnishing of the liquor but its consumption. The act was carried into the Revision of 1875, page 269, as § 9 of part I of chapter XIV of title 16.

In 1882, the law relating to intoxicating liquor was extensively revised, and the civil damage statute became § 12 of part VI of chapter 107 of the Public Acts of 1882. The statutory liability of the seller was enlarged to include sales made by his agent but was restricted to sales of liquor 'to be drunk on the premises'. This statute was continued, without material change, as § 3101 of the Revision of 1888, § 2713 of the Revision of 1902, and § 2815 of the Revision of 1918.

After the prohibition era, the basic form of our present civil damage act was adopted and now appears as General Statutes (Rev. to 1962) § 30-102, as quoted in footnote 1. This Act differed from the earlier forms of the Act, and the effect of this difference was explained in Pierce v. Albanese, 144 Conn. 241, 246, 129 A.2d 606, 611, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21. In that case, it was pointed out that the statute in its present form 'imposes liability irrespective of any causal relation between the sale of the intoxicating liquor to an intoxicated person and the injury which follows as a result of the intoxication.' Ibid. In this respect, as well as by eliminating the restriction to sellers of liquor 'to be drunk on the premises', the General Assembly unmistakably manifested its intention to simplify, and in some respects to strengthen and enlarge, the statutory cause of action.

And yet in this long period of over ninety years, the General Assembly, despite these foregoing significant changes, has remained constant in limiting the statutory right of recovery to persons other than the intoxicated person himself. It would have been an extremely simple matter for the General Assembly to have inserted in the present statute, for instance, after the words 'the person or property of', the words 'himself or', so that the Act would cover injuries to the person or property of the intoxicated person himself as well as to the person or property of another. Had something along this line been done, the statute would have been available to the intoxicated person himself. From this persistent exclusion, for nearly a century, of the intoxicated person himself from any right of recovery under the Act, it becomes clear that the statute, from as far back as 1872, at the least was intended to, and did, embrace the only modification of the common-law rule which the General Assembly has ever intended to make. ² See 30 Am.Jur. 825, Intoxicating Liquors, § 325; note, 8 A.L.R.3d 1412, 1413 § 2.

While the policy considerations implicit in our dram shop act may be subject to differences of opinion, it certainly was not unreasonable for the General Assembly to believe that to accord a right of action against a furnisher of alcoholic liquor otherwise than by sale, such as a donor, would be neither fair nor desirable; but that to accord, under certain circumstances, a right of action against a seller of alcoholic liquor, limited to innocent third party victims of an intoxicated person's misconduct, if resulting from his intoxication, would be fair and desirable. See note, 8 A.L.R.3d, 1412, 1413 § 2. It is also obvious that the General Assembly might properly consider that the evil of intoxication, and the manifold disastrous consequences flowing from it, would not be likely to be lessened by according against a seller of intoxicating liquor a cause of action in favor of an intoxicated customer for injury to himself or his property resulting from his own intoxication. To recompense in dadmages an injury to an intoxicated person or his property resulting from his own overindulgence in intoxicating liquor might, quite properly, be felt by the General Assembly to encourage, rather than to discourage, such overindulgence.

Of course if a cause of action is not predicated on the defendant's furnishing, whether by sale or gift, intoxicating...