Sworski v. Colman

• Decision Date: 10 February 1939
• Docket Number: No. 31950.,31950.
• Parties: SWORSKI v. COLMAN et al.
• Court: Minnesota Supreme Court

283 N.W. 778

204 Minn. 474

SWORSKI v. COLMAN et al.

No. 31950.

Supreme Court of Minnesota.

February 10, 1939.

Appeal from District Court, Carver County; Joseph J. Moriarty, Judge.

Action by Stanley Sworski, special administrator of the estate of Clifford Sworski, deceased, against S. H. Colman, doing business as the Colman Liquor Store, the National Surety Corporation, and another, to recover damages under the death by wrongful act statute. From orders sustaining defendants' separate demurrers to plaintiff's amended complaint, the plaintiff appeals.

Orders affirmed.

I. H. Levine and S. Wasserman, both of Minneapolis, for appellant.

A. E. Haering, of Waconia, for respondents.

JULIUS J. OLSON, Justice.

Plaintiff appeals from orders sustaining defendants' separate demurrers to his amended complaint. The grounds for the several demurrers are: (1) That several causes of action are improperly united, and (2) that the facts stated do not constitute a cause of action. The orders do not disclose whether one or both grounds pleaded formed the basis therefor, nor is there any memorandum accompanying them.

The action was brought by the special administrator of the estate of Clifford Sworski, deceased, to recover damages under the death by wrongful act statute, as amended, 3 Mason Minn.St.1938 Supp. § 9657. Liability against the several defendants is based upon the claim that defendant Colman operated an "on-sale liquor store" at Waconia and was engaged in selling intoxicating liquors to the public for profit; that defendant National Surety Corporation on April 7, 1938, executed, as surety, an "on-sale" liquor bond for Colman by the terms of which it agreed to "indemnify and to pay damages to any person who suffered damages by virtue of any violation of law on the part of" its principal. The penal sum of the bond is $3,000. On May 20, 1938, Clifford, plaintiff's intestate, a young man 19 years of age, entered Colman's liquor store; that Colman or his servants then and there "did wrongfully and unlawfully, and in violation of the laws" of this state "sell unto Clifford" intoxicating liquors in such quantities that he "became intoxicated and that said intoxicated state and condition caused the said minor to become seriously ill and weak"; that, "being in an intoxicated and weakened condition," he was arrested by defendant Radde, a police officer of Waconia; that "said minor's physical strength, condition, stamina and resistance were greatly reduced so that he was unable to bear and/or withstand any abuse." Radde lodged the intoxicated minor in jail at Waconia and "did thereafter and in violation of his duties as a police officer * * * negligently, * * unlawfully and wrongfully remove and deliver said minor in the aforementioned state and condition to two private citizens, for the purpose of transferring said minor to the jail in Chaska"; that these private citizens were acting under the instructions and orders of Radde, and that they "while transferring said minor as per Ed Radde's orders, and while said minor was in the weakened condition aforesaid, did maul, beat, bruise and abuse said minor"; and as a "direct and proximate result of the combined unlawful, careless, negligent acts of the defendants as hereinbefore mentioned, the said minor was killed." Decedent's surviving "next of kin" are his father and mother, both of whom "were dependent upon said Clifford * *." Damages are asked in the amount of $10,000.

1. As will be noted, there is no allegation that Clifford was arrested because he had become intoxicated or was disorderly by reason thereof; nor is any basis or ground pleaded as a reason for his arrest. The mauling, beating, bruising, and other abuse heaped upon Clifford by the private citizens engaged by Radde is nowhere alleged to have been even remotely connected with Colman's sale of liquor. There was no concert of action, no unity of design, nor even any claimed knowledge on Radde's part (or that of his two private citizen assistants) that Colman had anything to do with Clifford's condition as a cause for his arrest. "A person is liable only for the proximate or immediate and direct results of his acts." 4 Dunnell, Minn.Dig. (2 Ed. & Supps.) § 6999, and case under note 80. "The proximate cause of an injury is that which causes it directly and immediately, or through a natural sequence of events, without the intervention of another independent and efficient cause, — the predominant cause." Id. § 7000, and cases under notes 84 and 85.

Upon the facts here pleaded we can find no basis upon which joint tort liability can be fastened upon defendants.

What has been said is sufficient to sustain the orders. However, we think there is another and more cogent reason why the orders should be affirmed.

2. This action was brought to recover damages under the death by wrongful act statute. In order for plaintiff to prevail it is necessary that the cause be such that Clifford, "had he lived," might have pursued such an action. If he could not, then obviously his administrator may not. The wrong complained of as against Colman and his surety is that Clifford, being a minor, a sale to him was in violation of 1 Mason Minn.St.1927, § 3239, which provides:

"Every husband, wife, child, parent, guardian, employer, or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, shall have a right of action, in his or her own name, against any person, who shall by illegally selling, bartering, or giving intoxicating liquors, have caused the intoxication of such person, for all damages sustained; * * *."

"The cases are overwhelmingly to the effect that there is no cause of action at common law against a vendor of liquor in favor of those injured by the intoxication of the vendee." Demge v. Feierstein, 222 Wis. 199, 203, 268 N.W. 210, 212, where supporting cases are cited.

Is the quoted statute one giving to the individual who partakes of intoxicating liquors unlawfully furnished by another in such a position that he may maintain an action for the harm resulting to him from such intoxication, absent as here any allegation of assault, force, deceit, or other like means used by the alleged wrongdoer to bring about his intoxication? The quoted statute negatives any such notion. The cause giving rise to recovery of damages has for its foundation injury "in person or property, or means of support, by any intoxicated person, or by the intoxication of any...