Thomas v. Bruza

• Decision Date: 20 May 1957
• Citation: 311 P.2d 128,151 Cal.App.2d 150
• Court: California Court of Appeals Court of Appeals
• Parties: Earl E. THOMAS, Plaintiff and Appellant, v. Leila R. BRUZA, Pete Chavez, John Doe, Richard Roe, Jane Doe, James Black and David White, individually and as co-partners doing business as Black & White Company, a co-partnership, Blue Company, a corporation, and Red Company, a corporation, Defendants, Leila R. Bruza, also known as Lela R. Bruza, Respondent. Civ. 22145.

Page 128

311 P.2d 128

151 Cal.App.2d 150

Earl E. THOMAS, Plaintiff and Appellant, v. Leila R. BRUZA, Pete Chavez, John Doe, Richard Roe, Jane Doe, James Black and David White, individually and as co-partners doing business as Black & White Company, a co-partnership, Blue Company, a corporation, and Red Company, a corporation, Defendants Leila R. Bruza, also known as Lela R. Bruza, Respondent.

Civ. 22145.

District Court of Appeal, Second District, Division 2, California.

May 20, 1957.

Arthur Garrett, Los Angeles, for appellant.

Parker, Stanbury, Reese & McGee and Kenneth R. Garrett, Los Angeles, for respondent.

MOORE, Presiding Justice.

Appellant sued to recover damages alleged to have resulted from injuries suffered from a blow administered to him by one Peter Chavez, a drunk man. The parties were in a saloon whose proprietor had been requested on numerous occasions not to furnish Mr. Chavez alcoholic beverages sufficient to cause him 'to become intoxicated thereon.' After the jury had been empaneled and a witness had been sworn, defendants' objection to the first question and to plaintiff's motion to amend his complaint having been sustained, defendants' motion for judgment on the pleadings was granted. Now, on appeal it is contended that such rulings were prejudicially erroneous and that the judgment should be reversed.

The complaint alleges that appellant was in defendants' establishment by invitation; that with knowledge that on Chavez is pugnacious and quarrelsome when drunk, respondent received him in a sober condition and served alcohol to him 'until and after said defendant, Pete Chavez, became intoxicated'; that respondent previously had refused to discontinue serving Chavez alcohol until the latter had become inebriated; that as a proximate result of the blow, appellant 'was injured in his health, strength and activity, received * * * numerous contusions about the body and person * * * receiving multiple fractures of the right leg' etc.

The serious feature of the pleading has been the subject of similar causes presented to the appellate courts. No allegation of a negligent supervision of the saloon appears. Neither does the complaint allege that respondent had an opportunity to prevent the battery or that the blow was dealt in the presence of respondent. There is no allegation that the injuries of appellant were the proximate result of respondent's negligence. Interpreting the complaint liberally, the most that can be reasonably inferred is that respondent sold to Chavez alcoholic beverages knowing him to be quarrelsome and pugnacious when drunk; that Chavez became intoxicated and struck appellant and that the blow caused the latter's injuries. Such allegations are not enough to state a cause of action against respondent. Cole v. Rush, 45 Cal.2d 345, 354, 355, 289 P.2d 450; Fleckner v. Dionne, 94 Cal.App.2d 246, 249, 210 P.2d 530; Hitson v. Dwyer, 61 Cal.App.2d 803, 808, 143 P.2d 952. In the Cole case it was not the sale of the liquor that caused the drunkenness of plaintiff's husband, but the consumption thereof that dethroned his social instincts. The defendants had not only knowledge that when Cole became intoxicated he was quarrelsome and pugnacious, but that prior to his fatal visit to the 'Tropic Isle' of defendants, Mrs. Cole had specifically requested the defendants 'not to sell or furnish intoxicating beverages' to her husband sufficient to intoxicate him. They spurned her warnings. Mr. Cole purchased liquors It was there held that the common law ¹ quarrelsome, fought with one Franklin Leonard and was by him mortally wounded. It was there held that the comon law ¹ gives no remedy for injury or death following the mere sale of liquor to the ordinary man; that no statute has been enacted by California to take the place of or to set aside the common law; that it is the consumption of intoxicants which is the proximate cause of any subsequent conduct rather than the sale thereof. Cole v. Rush, supra. The decisions of this state are in unanimous accord that the sale of alcoholic beverages to a person is not a basis for him or his heirs to recover from the dispenser of such beverages for injuries suffered by a willfully bibulous patron who had become intoxicated by the alcoholic beverages purchased by such patron from the proprietor of the place. Fleckner v. Dionne, supra; Hitson v. Dwyer, supra; Lammers v. Pacific Electric Railway Co., 186 Cal. 379, 384, 199 P. 523. ²

While it is clear that merely by reason of the sale of the intoxicating liquor to Chavez appellant is not entitled to recover from respondent, yet the complaint indicates that it might be so amended as to declare a valid cause of action. Respondent was concededly operating a barroom where the proprietor is obligated to be on the alert for quarrelsome and pugnacious characters who may at any time come to provoke others or to breach the peace. It is true that the mere sale of an alcoholic beverage to a bibulous and pugnacious person is not actionable, yet, if the proprietor of a saloon is so negligent as to the character of his patrons who frequent his establishment that he is as likely to cause damage to his innocent patrons by neglecting to guard them, against the violence of known pugnacious, drunken men and evil doers as by neglecting to prevent a good citizen from failing on a newly waxed floor or from falling through a trapdoor into his cellar, then he is liable for his negligent failure to protect the innocent patron.

The result of a proprietor's negligence where he has knowledge of a customer's pugnacious character was the subject of a learned opinion by Judge Dimond in the federal court of Alaska in Cherbonnier v. Rafalovich, D.C., 88 F.Supp. 900. The facts in evidence were similar to those at bar. The plaintiff had alleged that while he was eating in the defendants' saloon, one Hobson who was then in a drunken condition, without provocation by plaintiff, threatened plaintiff with bodily harm. Thereupon the defendants' servant immediately sold Hobson more drinks; while plaintiff was still eating, Hobson maliciously attacked the plaintiff and severely injured him. The attack was made with full knowledge of the defendants' servant who not only made no attempt to protect the plaintiff but in fact aggravated the situation by serving Hobson drinks while the latter was intoxicated. The court dismissed the complaint as was done in the action at bar, approved the holdings such as those cited herein, but concluded that (1) plaintiff should have been allowed to amend his complaint to show that the defendants' servant had knowledge of Hobson's threat to do the plaintiff bodily harm before he served the last of the intoxicating liquor to Hobson and (2) the plaintiff should be permitted to allege, if he could do so, that Hobson was known to be of a violent disposition or that he...