Vesely v. Sager

Decision Date24 June 1971
Citation95 Cal.Rptr. 623,5 Cal.3d 153,486 P.2d 151
CourtCalifornia Supreme Court
Parties, 486 P.2d 151 Miles A. VESELY, Plaintiff and Appellant, v. William A. SAGER, Defendant and Respondent. L.A. 29836

Hafif & Shernoff and Stephen L. Odgers, Claremont, for plaintiff and appellant.

Murchison, Cumming, Baker & Velpmen and Ronald R. McQuoid, Los Angeles, for defendant and respondent.

WRIGHT, Chief Justice.

In this case we are called upon to decide whether civil liability may be imposed upon a vendor of alcoholic beverages for providing alcoholic drinks to a customer who, as a result of intoxication, injures a third person. The traditional common law rule would deny recovery on the ground that the furnishing of alcoholic beverages is not the proximate cause of the injuries suffered by the third person. We have determined that this rule is patently unsound and that civil liability results when a vendor furnishes alcoholic beverages to a customer in violation of Business and Professions Code section 25602 and each of the conditions set forth in Evidence Code section 669, subdivision (a) is established. Since neither issue is presented in the instant case, we do not decide whether a noncommercial furnisher of alcoholic beverages may be subject to civil liability under section 25602 or whether a person who is served alcoholic beverages in violation of the statute may recover for injuries suffered as a result of that violation. Additionally, we reaffirm our decision in Pianka v. State of California (1956) 46 Cal.2d 208, 293 P.2d 458, and hold that a nonstatutory speaking motion to strike or dismiss a complaint should be treated as a motion for summary judgment. (Code Civ.Proc., § 437c.)

Plaintiff Miles Vesely brought this action to recover for personal injuries and property damage sustained in an automobile accident. The only defendant involved on this appeal is William A. Sager, individually and doing business as the Buckhorn Lodge. Other defendants are James G. O'Connell, the driver of the vehicle which collided with plaintiff's automobile, and Earl Dirks, the owner of the car driven by O'Connell. The facts which are alleged in the complaint and which we must accept for the purposes of this appeal 1 are as follows:

Defendant Sager owned and operated the Buckhorn Lodge, a roadhouse located near the top of Mount Baldy in San Bernardino County, and was engaged in the business of selling alcoholic beverages to the general public. Beginning about 10 p.m. on April 8, 1968, Sager served or permitted defendant O'Connell to be served large quantities of alcoholic beverages. At the time the beverages were served, Sager knew that O'Connell was becoming excessively intoxicated and that O'Connell was 'incapable of exercising the same degree of volitional control over his consumption of intoxicants as the average reasonable person.' Sager also knew that the only route leaving the Buckhorn Lodge was a very steep, winding, and narrow mountain road and that O'Connell was going to drive down that road. Nevertheless, Sager continued to serve O'Connell alcoholic drinks past the normal closing time of 2 a.m. until 5:15 a.m. on April 9. After leaving the lodge, O'Connell drove down the road, veered into the opposite lane, and struck plaintiff's vehicle. The complaint also alleges that O'Connell drove the automobile with the consent, permission, and knowledge of the remaining defendants, that each defendant was the employee and agent of the other defendants, and that each of the defendants 'was at all times acting within the purpose and scope of said agency and employment.'

Defendant Sager demurred to the complaint on the ground that a 'seller of intoxicating liquors is not liable for injuries resulting from intoxication' of a buyer thereof, and he moved to strike as sham those allegations of the complaint which alleged that O'Connell drove the automobile with the permission of the other defendants and that each defendant was the employee and agent of the remaining defendants. In support of the motion to strike, Sager submitted his declaration in which he stated that O'Connell and Dirk 'were not in (his) employment on the date of the accident' and that he never had any ownership interest or any other interest in the automobile driven by O'Connell.

The trial court sustained the demurrer without leave to amend, granted the motion to strike, and dismissed the complaint as to defendant Sager. Plaintiff appeals. 2

Until fairly recently, it was uniformly held that an action could not be maintained at common law against the vendor of alcoholic beverages for furnishing such beverages to a customer who, as a result of being intoxicated, injured himself or a third person. 3 (Collier v. Stamatis (1945) 63 Ariz. 285, 162 P.2d 125; Howlett v. Doglio (1949) 402 Ill. 311, 83 N.E.2d 708; State for Use of Joyce v. Hatfield (1951) 197 Md. 249, 78 A.2d 754; Seibel v. Leach (1939) 233 Wis. 66, 288 N.W. 774; see 45 Am.Jur.2d, Intoxicating Liquors, § 553; 48 C.J.S. Intoxicating Liquors § 430; Joyce on Intoxicating Liquors, § 421; Comment, Dramshop Liability--A Judicial Response (1969) 57 Cal.L.Rev. 995, 1000--1001; Annot. 130 A.L.R. 357.) The rationale for the common law rule was that the consumption and not the sale of liquor was the proximate cause of injuries sustained as a result of intoxication. (See, Pratt v. Daly (1940) 55 Ariz. 535, 538, 104 P.2d 147; 45 Am.Jur.2d, Intoxicating Liquors, § 553.) 'The rule was based on the obvious fact that one cannot be intoxicated by reason of liquor furnished him if he does not drink it.' (Nolan v. Morelli (1967) 154 Conn. 432, 226 A.2d 383; 45 Am.Jur.2d, Intoxicating Liquors, supra, at p. 853; see King v. Henkie (1886) 80 Ala. 505, 511; Pratt v. Daly, supra, 55 Ariz. 535, at p. 538, 104 P.2d 147.) The common law rule has been substantially abrogated in many states by statutes which specifically impose civil liability upon a furnisher of intoxicating liquor under specified circumstances. (See Comment, 57 Cal.L.Rev. 995, 996, fn. 6, listing the 20 states that have such statutes.) California, however, has not enacted similar legislation.

The common law doctrine that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication was first mentioned in this state in Lammers v. Pacific Electric Railway Company (1921) 186 Cal. 379, 199 P. 523. In that case the defendant railroad ejected the plaintiff, a passenger who was unable to find his fare, from one of its trains while the plaintiff was quite helpless from intoxication and mental deficiency. The plaintiff, who apparently had been struck by a train, was discovered more than six hours later, lying badly maimed on another set of railroad tracks some three quarters of a mile from the point where he had been ejected from the defendant's train. The court held that the defendant's action in ejecting the plaintiff from its train was not the proximate cause of the injuries sustained thereafter. In dictum the court stated that 'The sale of whiskey to the plaintiff would come nearer being a proximate cause of the injury than the ejection from the railway train. * * * (Y)et it has been uniformly held, in the absence of statute to the contrary, that the sale of intoxicating liquor is not the proximate cause of injuries subsequently received by the purchaser because of his intoxication. Joyce on Intoxicating Liquors § 421; Cruse v. Aden, 127 Ill. 231, 234, (20 N.E. 73, 3 L.R.A. 327).' (186 Cal. at p. 384, 199 P. at p. 525.)

The dictum in Lammers was relied upon in Hitson v. Dwyer (1943) 61 Cal.App.2d 803, 143 P.2d 952. There the plaintiff alleged that while obviously intoxicated and sitting on a movable stool at the defendant's bar, he was served alcoholic beverages in violation of section 62 of the Alcoholic Beverage Control Act. (Now Bus. & Prof.Code, § 25602.) The plaintiff claimed that as a result of the wrongful sale of intoxicants, he fell from the stool; that the defendants negligently dragged him from his position on the floor; and that the fall or the dragging or both, caused him to suffer various bodily injuries. The court rejected the plaintiff's contention that the defendants' violation of the Alcoholic Beverage Control Act constituted negligence per se. The court reasoned that the statute was not enacted for the purpose of protecting an obviously intoxicated person who had been served alcoholic beverages in violation of its provisions. Moreover, the court stated that violation of the act could not result in liability since 'the proximate cause (of injury resulting from intoxication) is not the wrongful sale of the liquor but the drinking of the liquor so purchased.' (61 Cal.App.2d at p. 809, 143 P.2d at p. 955.)

Thereafter, in Fleckner v. Dionne (1949) 94 Cal.App.2d 246, 210 P.2d 530, the court affirmed a judgment for the defendant tavern keeper in an action by a person who had been injured in an automobile accident caused by a minor who had purchased alcoholic beverages in the defendant's establishment. The complaint alleged that the defendant knew that the purchaser was a minor; that the defendant sold liquor to the minor 'while he was already under the severe influence of intoxicating liquors;' that the defendant knew that the minor had an automobile on the premises which he was going to drive; and that defendant knew that the driving of the car by the minor while intoxicated would result in harm to others on the highway. The trial court sustained a demurrer and entered judgment for the defendant. In affirming the judgment, the court relied upon the dictum in Lammers, the decision in Hitson, and various out-of-state decisions.

Finally, in Cole v. Rush (1955) 45 Cal.2d 345, 289 P.2d 450, this court held that the wife and children of a customer who died as the result of injuries sustained in a barroom brawl could not maintain a wrongful death action against the owners of a tavern for furnishing...

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