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

COLE et al. v. RUSH et al.*

Civ. 19832.

Decided: November 06, 1953

John C. Stevenson and Lionel Richman, Los Angeles, for appellants. Parker, Stanbury, Reese & McGee, John Henry Peckham, Los Angeles, for respondents.

Plaintiffs appeal from a judgment in favor of defendants predicated upon the sustaining of their general demurrer to the amended complaint without leave to amend, in an action to recover for wrongful death.

Facts: The pleading alleges:

Plaintiffs are the widow and children of James Bernard Cole, deceased; October 13, 1950, decedent visited a saloon known as the Tropic Isle owned and operated by defendants; at the time he entered the bar he was sober, but while there he purchased quantities of intoxicating liquor which he consumed resulting in his becoming intoxicated; decedent was well known to defendants who knew that when he was sober he was of a quiet demeanor, but when he was intoxicated he become beligerent, quarrelsome and pugnacious; plaintiff Dorothea Cole had on numerous occasions asked defendants not to sell her husband sufficient liquor so that he would become intoxicated.

It was also alleged that after decedent became intoxicated on October 13, 1950, he challenged a patron of the bar, Franklin Leonard, to a fight and in the altercation the followed decedent was struck by Leonard and fell to the pavement striking his head as a result of which he died.

Question: Did the amended complaint fail to state a cause of action for negligence against defendants in selling decedent intoxicating liquor, as a result of which he became intoxicated, engaged in a fight and received injuries from which he died?

Yes. In the absence of a statutory provision the serving of alcoholic beverage to a patron in an obviously intoxicated condition is not the proximate cause of an injury subsequently received by him because of his intoxication. (Hitson v. Dwyer, 61 Cal.App.2d 803, 806[3a] et seq., 143 P.2d 952; Fleckner v. Dionne, 94 Cal.App.2d 246, 248[1], 210 P.2d 530.) In each of the foregoing cases a petition for a hearing was denied by the Supreme Court; hence we are bound by the rule announced in such decisions.

Since the facts in the instant case fall squarely within the foregoing rule the trial court properly sustained the general demurrer without leave to amend.

There is an additional reason which compels an affirmance of the decision of the trial court. In the complaint it is alleged that after decedent became intoxicated he challenged a patron of the bar, Franklin Leonard, to a fight and that in the altercation which followed, decedent was struck by Leonard causing him to fall to the pavement, striking his head, as a result of which he died. Clearly, the proximate cause of decedent's death was not his intoxication but the blow he received from Leonard which caused him to strike his head, resulting in his death.

In view of the decisions of the appellate courts of our own state, Peck v. Gerber, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996; Mastad v. Swedish Brethren, 83 Minn. 40, 85 N.W. 913, 53 L.R.A. 803; Molloy v. Coletti, 114 Misc. 177, 186 N.Y.S. 730, and Curran v. Olson, 88 Minn. 307, 92 N.W. 1124, 60 L.R.A. 733 are not here applicable. (Schneider v. Schneider, 82 Cal.App.2d 860, 862[2], 187 P.2d 459.)


I dissent. The authorities relied upon by respondent, Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530, and Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952, 953, are not controlling in this action. In the Fleckner complaint it is alleged that the proprietor of the saloon sold and served the minor Dionne intoxicating liquors while he was already drunk knowing that his automobile was nearby and that he would thereafter drive it and that such conduct was a negligent disregard of rights of plaintiffs. In the Hitson complaint, it is alleged that ‘while [he] was obviously intoxicated and sitting on a movable stool at defendants' bar he wrongfully was served intoxicating liquor, and as a result he fell from said stool to the floor’; he was dragged by defendants from his position on the floor; ‘as a result of said fall or the dragging, or both, plaintiff suffered a fracture, and other injuries'. Both cases alleged no more than negligence in serving liquors which the courts held was too remote to be actionable. In the action at bar, the pleading charges that prior to the date of decedent's injuries ‘and on occasions too numerous to name, plaintiff Dorothea Cole, requested defendants and each of them not to give, sell or furnish intoxicating beverages to James Bernard Cole sufficient to allow him to become intoxicated’ but that defendants refused to desist from selling James intoxicating beverages; prior to James' coming to the saloon on the day he was injured he was not intoxicated by reason of the use of alcoholic beverages; at their saloon defendants gave, sold and furnished to James Cole alcoholic beverages which he drank until he was intoxicated; by reason of such intoxication from the alcoholic beverages, James became quarrelsome, belligerent and pugnacious; quarreled with one Leonard who struck Cole; the latter then fell to the pavement resulting in his death.

Moreover, it was also alleged that defendants had specific knowledge, derived from decedent's numerous prior visits to the saloon, that he habitually became intoxicated and while in this state was invariably rendered belligerent and quarrelsome. Such definite knowledge of Cole's character must have given defendants reason to foresee such harm as resulted from his use of alcohol at the time in question. The fact that other events contributed to assure his death does not erase or minimize the evil of respondent's service of alcohol to decedent. It is these allegations of express knowledge on the part of defendants that serve to distinguish the case presented from the Fleckner and Hitson decisions.

If decedent had been allergic to sodium chloride and Mrs. Cole had notified defendants of such fact and if in disregard of such notice they had sprinkled salt on the eatable they served to Mr. Cole, and as a result he had died would they still be free from liability for causing his death? I see no such magic attached to the word ‘alcohol’ as to make those who engage in the sale of it stand above the plane of ordinary mortals. Dealing in poison may be good cause for all men to beware, but it should place upon the dealer the responsibility for serving it to a person whom the dealer knows will probably cause injury to others or death or injury to himself while under the alcoholic influence. Alcohol has from time immemorial been under the ban of the law and is allowed upon the counter of the merchant or on the bar of a saloon solely by license. Because he is licensed to sell it does not exempt the vendor from the duty he owes to every member of the public: not to place it in the hands of a person he knows to be irresponsible and who while under its influence may do incalculable mischief.

The argument of Mr. Justice Dooling's dissent, Fleckner v. Dionne, supra, is apropos with additional cause for reliance upon it.

McCOMB, Justice.

FOX, J., concurs.

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