Pratt v. Daly
Citation | 104 P.2d 147,55 Ariz. 535 |
Decision Date | 01 July 1940 |
Docket Number | Civil 4161 |
Parties | GEORGE W. PRATT and B. J. MOORE, Appellants, v. ANNA DALY, Appellee |
Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Pima. Jesse A. Udall, Judge. Judgment affirmed.
Mr. K Berry Peterson and Mr. Bryce H. Wilson, for Appellants.
Messrs Krucker & Fowler, for Appellee.
This is an action by Anna Daly, hereinafter called plaintiff, to recover damages from George W. Pratt and B. J. Moore hereinafter called defendants. The material allegations of the complaint, in substance, are as follows:
Plaintiff and one John Daly were husband and wife, living together in Tucson. In November, 1936, Daly was an habitual drunkard, and with full knowledge of this fact, and after warning by plaintiff of his condition, defendants continuously and repeatedly, and over the protest of plaintiff, furnished to Daly intoxicating liquors. As a result thereof she was deprived of the consortium which Daly had previously give to her and to which she was entitled as his wife. The prayer was for $ 3,000 in actual and $ 2,000 in punitive damages. Defendants demurred to the complaint on the ground it did not state a cause of action, which demurrer was overruled, and after various other preliminary legal matters were disposed of, the case went to trial before a jury, which returned a verdict in favor of plaintiff, in the sum of $ 500 actual and $ 500 punitive damages, whereupon this appeal was taken.
The first question for us to consider is whether the law recognizes an action of this nature. The theory of the complaint obviously is that defendants were guilty of a tort of some kind which caused an injury to plaintiff, and it is plain from the facts pleaded that the tort, if one existed, sounds in negligence. Actionable negligence is of two kinds, statutory and common law. Whenever a valid statute or regulation provides that a certain thing must or must not be done, if a failure to comply with such regulation is a proximate cause of injury to another, such failure is actionable negligence per se. Salt River Valley W.U. Assn. v. Compton, 39 Ariz. 491, 8 P.2d 249.
Common-law actionable negligence is the failure of one owing a duty to another to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such a person would not have done, which omission or commission is the proximate cause of injury to the other. Salt River Valley W.U. Assn. v. Compton, supra. Let us consider whether the complaint sets up either kind of negligence.
So far as common-law negligence is concerned, it has been held by an unbroken line of decisions that the mere sale of intoxicating liquor to a husband or wife, when it is consumed by the purchaser and thereby a situation arises which results in financial injury to the other spouse, does not give rise to an action for damages. These cases are divided into two classes. In the first the rule is merely stated, with a citation to some prior authority, but it is not reasoned out in any manner. It is obvious that cases of this kind have no particular weight in and of themselves for they are necessarily based not only upon the conclusion but the reasoning of the authorities they cite, and, since the stream cannot rise above its source, are dependent upon the cited cases. The second class of cases are those where the reasoning which supports the result is given. In all of this last class of cases the line of reasoning followed is substantially the same. It is (a) the sale of intoxicating liquor is a perfectly lawful act and, therefore, cannot of itself be negligence, and (b) even if the sale is unlawful, it can never cause any harm unless the liquor is consumed by the purchaser.
It is assumed in all of the cases referred to that the consumption is an act independent of and distinct from the sale, depending entirely upon the free will of the purchaser, and it is, therefore, held (and correctly if the premise be true), that (1) the consumption and not the sale is the proximate cause of any injury, and (2) in cases where the husband or wife is plaintiff, the consumer is guilty of contributory negligence which is imputed to plaintiff, and no recovery can be had.
There is not a single case, so far as we can find, where the question was discussed or even raised as to whether the rule was different when the consumer had, to the knowledge of the vendor, reached such a state that his power to drink or not, as he chose, had been destroyed. The only case, so far as we are advised, that even remotely presents and discusses such a factual situation is that of King v. Henkie, 80 Ala. 505, 60 Am. Rep. 119. Therein the court says:
"... (Italics ours.)
It will be seen that this case assumes the purchaser at the time he consumed the liquor had full power to drink or not, as he willed.
During the middle of the last century it became apparent that great injury was often done to wives and children as a result of the sale of intoxicating liquor to those who would abuse its use, and in many states what are commonly denominated civil damage acts were adopted. These acts, in substance, provided that if liquor was sold to a person under circumstances set forth in the act, specified parties injured thereby in person, property or lack of support might bring a suit against the vendor for damages. These acts were universally upheld as within the constitutional power of the various legislatures, but as no such statute exists in Arizona, cases from other states based upon civil damage acts are not in point in the present case.
In 1866, however, in the case of Hoard v. Peck, 56 Barb. (N.Y.) 202, an action was brought by a husband against a druggist to recover damages for selling to plaintiff's wife large quantities of laudanum to be used by her as a beverage, as a result of which the wife was made ill and her mind affected, so that she was unable to perform her duties as a wife, and the husband lost her affection and society. The claim was made by defendant that the sale of laudanum was lawful, and further that the wife having taken it voluntarily, the proximate cause of the injury was not the vending but the consumption, the defense being similar in all respects in principle to that made in cases under the common law involving intoxicating liquors, to which we have referred. The court said, in upholding the right of action:
This is the first case which discussed and recognized the now universally accepted scientific principle that there are substances which, when consumed steadily, effectually destroy the power of the consumer to cease their use, and also injure or destroy his normal physical and mental health.
Following this case, in Holleman v. Harward, 119 N.C. 150, 25 S.E. 972, 975, 56 Am. St. Rep. 672, 34 L.R.A. 803, a similar action was brought and the court therein followed the rule laid down in Hoard v. Peck, supra, saying:
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