*1 Dist., Twо. Oct. 14142. First Div. No. [Civ. 1949.] Appellants, v. EDWARD al., G. FLECKNER et WILBUR Defendants; D. Minor, P. DIONNE, etc., al., G. et PANGRACS, Respondent. Appellants.
Joseph A. Bonaeina for Respondent. Haughwout for Lamb and Robert A. Robert L. respondent Acting P. The demurrerof ODELL, J. GO Roe, sustained with leave to Pangracs, sued as Richard judgment was amend, and Plaintiffs declined to amеnd. Pangracs, nothing plaintiffs take entered that appeal which was taken. alleges that the defend- complaint is in three counts. on El Camino negligently operated their Ford sedan
ants so driven it to collide with the automobile Real as to bodily injuries The first is based on Wilbur Fleekner. count G. sustained and the latter second to Mrs. Fleckner. respondent Pangracs
The third count is the which one brought into the incorporates paragraph case. It I of the counts, simply first second which contains the alle- usual *2 gations respecting fictitious defendants. It then on alleges information and belief that the five fictitious defendants owned, maintained, operated Sunny- and conducted a tavern in vale and in evening p. that the between and 10 m. Dionne, defendant Edward a minor, patron G. a the tavern purchased given intoxicating and was sold and and liquors and was allowed to consume therein; the same the that minor, fictitious defendants that he knew was a and the intoxicating liquors to him while he was under the intoxicating severe influence of liquors; they that also knew upon that he had the an near and automobile propel would thereafter drive it; and and defendants agents their servants, employees and and knew should have known and foreseen that the of the automobile him in his then intoxicated condition could and would result in damage harm upon highway. and to others the the That serving sale and intoxicating liquor him, to did was and negligent disregard constitute a rights plaintiffs, of the damage. their ‘1 alleges It that thereafter defendant Edward did G. Dionne in the said intoxicated condition and under a severe influence upon drive highway, unlawfully, negligently the said recklessly and propel and that did in he his automobile such a manner as to violently so cause the same to collide with the in plaintiffs automobile which riding, above named were all injuries damage their and as hereinabove set forth.” alleges further, all proxi- “That the said was a mate and reck- unlawfulness, direct result of negligence, defendants, Doe, lessness of the Jane Doe, John Richard Roe, co-partnership First Doe a and Doe Company, Second Company, corporation, forth, a herein which said as above set care- joined unlawfulness, co-operated and with the lessness, defendant, and recklessness Edward Dionne, produced damages G. herein- alleged.” above respondent specifies third his demurrer count
that no cause of action it is tоo remote is stated any actions of cannot be determined what manner defend- alleged injuries. ants were cause of the question presented sufficiently ap for decision pears allegations ground from the of the count of remoteness raised the demurrer.
Appellants
supply any
not able
in this
authority
are
supporting
position.
state
their
On the other hand whenever
touching
our
have
at all
anything
courts
had occasion to
question,
language
has
a
the court’s
indicated
view such
expressed
decisions
other states where the
question has arisen.
Ry. Co.,
In Lammers
Electric
P. 523], expulsion the court held that the of the injuries which the train was not the cause of the mile three-quarters he received hours later and some six say: away. court did that ease the only ejection and “The connection between the ejection that if had there would be fact there been injury. whisky The sаle of the been no being nearer would come peril ejection railway train. The than the from the ejection passenger arising from the ceased the moment he position left where could be struck *3 intoxicating arising from the of the trains, peril while the use liquor operation up to the timе of continued yet uniformly has been held thereto, and it contributed intoxicating contrary that to the the sale absence statute of of injuries subsequently liquor not (Joyce by the because his intoxication. purchaser received Intoxicating Aden, Ill. Liquors, Cruse v. on sec. 73].)” (Emphasis added.) N.E. L.R.A. [3 952], Cal.App.2d Dwyer, In Hitson v. [143 for sustained while plaintiff sued a tavern owner had been intoxi tavern, where he within the obviously alleged He liquor cating while by the dragged then fell from a to the floor he stool said, page at employee. The court and an defendant contrary, showing proxi “. the absence of . . in wrongful liquor but the drink sale оf the mate cause not the If liquor purchased. (30 Am.Jur., 611.) ing sec. of the so plaintiff has apparent it becomes our view be correct wrong, an actionable and nonaetionable alleged both properly sustained.” special demurrer was defendants’ liquor, while the wrong was the sale of the nonaetionable floor. wrong dragging across the actionable language neither of these two which cases we quoted necessary to the decision. what the says holdings court in each of them is in accord with the other question, Whether or the sale is a cause. opinion qualifies in the Lаmmers ease its statement respecting holding by “uniform” saying “in the absence contrary.” many statute to the In this connection of the damage greatly states have civil enacted acts which extend enlarge liability saloonkeepers and tavern owners. legislation Such Joyce Intoxicating is discussed in Liquors, sections Illinois, instance, 420-497. for dramshop has had a many years, repeatedly which has come its before courts. A involving Hyba case that act was v. G. A. Horne man, Inc., 302 App. Ill. 564], (cited N.E.2d in Hitson v. Dwyer, supra) where the court “The said: common law gave remedy for the theory sale of either on the it was a direct wrong ground or on the that was negligence, which impose legal liability on the seller for dam ages resulting from intoxication.” Numerous cases thing same and it is needless to cite them.
California
has no civil
act.
In Seibel v. Leach,
The facts of that
substantially
case and of this are
the same.
Seibel Leach was,
is,
an action on behalf of a third
*4
person. Demge v. Feierstein,
eases are to the effect liquor in favor of action common law a vendor at Black, injured by intoxication of the vendee. of those Hutton, Buntin Intoxicating Liquors, 13, 281; c. v. Law of sec. 151; 463, A. Ill.App. 194; Healey Cady, 104 Vt. v. Johnson, Coy 458; v. Cutting, 109, v. 138 Kan. 23 P.2d State (N.S.) Kraus v. 293, 785, 121 N.W. L.R.A. S.D. 365.” al., et 105 Neb. 182 N.W. Schroeder Bеverage Act argue Control Appellants that the Alcoholic makes Deering’s Laws, Act 1935, p. 1123; Gen. [Stats. intoxicating liquor a minor or to it unlawful to sell alleged appellants’ is In Waller’s Adm’r. defendant Dionne was both. herein that Ky. 766, Ann.Cas. (1911), 144 S.W. v. Collinsworth liquor upon which 299], the sale of 1913A L.R.A.N.S. (a) made local illegal becausе the action was based was brought territory (b) action was option to a minor. The by a com- been shot of a decedent who had the administrator panion in Collins- after both men had become The consti- liquor which he had sold them. worth’s store on was statutory under which the action provisions tutional аnd wrongful liability only fixed if prosecuted held that death. The court proximate cause of the cause of illegal liquor sale of the Waller’s death. sale, appel-
Further,
illegality of the
on the
rely
Am.Rep. 42],
Dunlap Wagner,
lants
ant “The defendant’s act in the beer created opportunity situation which afforded an plaintiff’s fellow employee to voluntarily, intoxicate himself and voluntary the ’’ employee fеllow cause of the injury. damage legislation
In the absence of state, civil with such expressed by views as have been our courts on the (Lammers subject cases, supra) coinciding and Hitson with holdings questions other where directly passed been we upon, sustaining are satisfied that the respondent Pangracs the demurrer of was correct. is affirmed. Runnells, pro J. tem., concurred.
DOOLING, frankly J. I dissent. I admit the cases judisdictions from other are all to effect that remedy dispenser absence of statute exists injuries resulting to third from the acts persons persons. questions considered as proximate cause, lаw of I cannot bow to reasoning of decisions to the full those when carried holding extreme of under no circumstances can one who knowing becoming dispenses to another intoxi- that he injured the intoxi- person cated be liable later perpetu- reason for person’s conduct; сated can see no other of the courts of ating in the law of this state the error jurisdictions. ordinary pru
Negligence is measured what a similar circum dence would or would not do under the same or may be thoroughly settled that stances though the another even cause of an *6 ordinary pru intervenes, person person if a act of a third reasonably anticipate probability dence could Pool intervening (McEvoy American person’s conduct. v. Mosley ; v. Ar Corp., 295, seq. 32 P.2d Cal.2d 299 et 783] [195 372, 158 seq. P.2d Co., den Farms 218 et 26 Cal.2d [157 1001].) P.2d ; 215 449 Helbing, A.L.R. Katz v. Cal. [10 872] alleges in effect that in this action Roe) to the defend- Richard (sued as Pangrаcs defendant liquor knowing minor, intoxicating Dionne, a ant Edward G. auto- knowing he had an intoxicated, that he was knowing that he would premises and near the mobile on or alleged that further automobile. drive the thereafter known that should have Pangracs knew or defendant con- in an intoxicated by Dionne driving thе automobile others on in result and would dition could from a colli- plaintiffs resulted injuries to highway, that the intoxicated while in an by Dionne car driven sion with the plaintiffs was a damage to that the condition and to Dionne. negligence in Pangracs’ result unanimity decision in other Despite the my opinion sufficient to allegations are contrary these part alleged on the have conduct We state a cause of action. intoxica- increase the Pangracs which would of the defendant Pangracs knew that allegations that tion of Dionne and when he left his automobile drive Dionne would driving in an intoxi- his have known that or should and knew high- safety imperil the of others cated condition negligence the sale to establish way. sufficient This is allegations foresee- that the have the further liquor. We injured by Dionne plaintiffs were happened and able cited the eases above intoxicated. Under while his automobile cause. this establishes the owner of an automobile entrust- legion The cases are known to be addicted driver or to one intoxicated ing it to an resulting damages to third may be liable for to intoxication driving. (Knight v. person’s the intoxicated persons
253
454]; Department
Gosselin,
290, 294
P.2d
Cal.App.
124
[12
Reynolds
577; R. J.
Anderson, 95 F.2d
Water & Power v.
Jackson,
819;
153 F.2d
Tolbert v.
Newby,
Tobacco Co. v.
;
Langford,
Hitson Dwyеr, is dis- tinguishable. There the drunken man sued for contributory settled rules of I himself. Under fault concede that he could not recover. judgment. reverse the rehearing petition 19, 1949,
A for a was denied November appellants’ hearing by Supreme for a petition Court 15,1949. hearing. for a Carter, J., was denied December voted