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

Miles VESELY, Plaintiff and Appellant, v. William A. SAGER, etc., et al., Defendants and Respondents.

Civ. 9836.

Decided: October 09, 1970

Hafif & Shernoff and Stephen L. Odgers, Claremont, for plaintiff and appellant. Murchison, Cumming, Baker & Velpmen and Ronald R. McQuoid, Los Angeles, for defendants and respondents.



On October 4, 1968, plaintiff filed a complaint naming as defendants William A. Sager, dba Buckhorn Lodge, Earl Dikes, James Garfield O'Connell and Does I through XX. The comlaint alleged that on August 8, 1968, defendant Sager operated the Buckhorn Lodge, located near the top of Mount Baldy, where he engaged in the sale of alconolic beverages to the public, and that he knew the only access to his establishment was via an extremely narrow, steep and winding mountain road. The complaint further alleges that on the night of August 8, 1968, defendant Sager and Does VI through XV served or allowed to be served extremely large quantities of intoxicating beverages to defendant James Garfield O'Connell, knowing that defendant O'Connell was becoming excessively intoxicated. Further, the complaint alleges, ‘That defendant, William Sager, dba Buckhorn Lodge and Does VII through XV and each of them, were negligent in that they knew, or should have known, that defendant James Garfield O'Connell was a person incapable of exercising the same degree of volitional control over his consumption of intoxicants as the average reasonable person; that defendant James Garfield O'Connell was at all times herein mentioned incapable of voluntary action in limiting his consumption of intoxicants; and that serving excessive intoxicants to a person incapable of exercising volitional control over his consumption of intoxicants under conditions where said person was to drive an automobile on said Mount Baldy Road would expose third parties to a probable and unreasonable risk of harm.’

The complaint alleges that the defendant Earl Dikes negligently entrusted his automobile to the care of defendant O'Connell on the night of August 8–9, withe the consent, permission and knowledge of all of the remaining defendants, while ‘each of the defendants was the agent and employee of each of the remaining defendants, and was at all times acting within the purpose and scope of said agency and employment.’

Finally, the complaint alleges that defendant O'Connell negligently operated his automobile, causing it to strike plaintiff's vehicle. The complaint prayed for general and special damages against all defendants.

On November 18, 1968, defendant Sager filed a demurrer, asserting that plaintiff's complaint failed to state a cause of action against him. On December 5, 1968, the superior court sustained defendant's demurrer, granting plaintiff ten days within which to amend.

On December 17, 1968, plaintiff filed his first amended complaint. This complaint again asserted the liability of defendant Sager, both on the theory that he had negligently served intoxicating beverages to defendant O'Connell, knowing the latter was incapable of limiting his intake, and on the theory that O'Connell was acting as an agent of Sager at the time of the accident. On January 6, 1969, defendant Sager filed both a demurrer to the complaint for failure to state a cause of action against him and a motion to strike. This later document was supported by defendant Sager's sworn affidavit that defendants O'Connell and Dikes were not in his employ on the night of the accident, and that he owned no interest in the car O'Connell was driving at the time of the accident. The motion to strike was granted and the demurrer was sustained without leave to amend.

On February 26, 1969, plaintiff filed a notice of appeal from the ruling on demurrer and notice to strike. Thereafter on March 13, 1969, an order of dismissal was filed in the superior court.

Plaintiff's contention in this appeal is that his first amended complaint was sufficient to state a cause of action against defendant Sager in that, under California law, the seller of intoxicating beverages is liable for injuries resulting from intoxication when he sells intoxicating beverages to an individual he knows or should know to be an habitually intoxicated person. Although plaintiff purports to appeal from the granting of the motion to strike, his sole contention in this regard is that the granting of the motion does not affect the merits of his cause of action for the negligent intoxication of an habitual alcoholic. Thus, as plaintiff does not question the propriety of the order granting the motion to strike as such, the gravamen of his appeal lies in the order sustaining the demurrer without leave to amend.

Initially, we note that an order sustaining a demurrer without leave to amend was a non-appealable order at the time this notice of appeal was filed. (Code of Civ.Proc. § 963; Daar v. Yellow Cab Co., 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732; Bledsoe v. Informative Research, 247 Cal.App.2d 684, 56 Cal.Rptr. 9.) The revised statute defining appealable judgments and orders from a superior court, Code of Civ.Proc. § 904.1, effective July 1, 1970, does not appear to have altered this rule. The apppeal may be taken only from the judgment of dismissal entered after the sustaining of the demurrer. Although plaintiff purports to appeal from the order sustaining the demurrer without leave to amend, we note that subsequent to his filing of the notice of appeal, an order of dismissal was made in this case. As this court favors disposition of appeals on their merits, and as defendants have not detrimentally relied on the erroneous nature of plaintiff's notice of appeal in the preparation of his brief, we will deem the appeal taken from the judgment of dismissal and the notice of appeal as filed directly after entry of judgment. (Rule 2(c), Calif. Rules of Court; Windsor Mills v. Richard B. Smith, Inc., 272 Cal.App.2d 336, 77 Cal.Rptr. 300.)

Passing to the merits of the appeal, plaintiff concedes that at common law, the simple act of selling intoxicating liquor to a person who becomes intoxicated does not make the seller liable for damages inflicted by the intoxicated patron on third parties. (Cole v. Rush, 45 Cal.2d 345, 348, 289 P.2d 450; Lammers v. Pac. Elec. Rwy. Co., 186 Cal. 379, 384, 199 P. 523; Fleckner v. Dionne, 94 Cal.App.2d 246, 251, 210 P.2d 530; Hitson v. Dwyer, 61 Cal.App.2d 803, 808, 143 P.2d 952.) However, he contends that California recognizes a cause of action in a third party against an innkeeper who provides intoxicating beverages to a patron whom the innkeeper knows or should know is incapable of exercising normal volitional control over his consumption of alcoholic beverages when the intoxicated patron inflicts injury on the third person as a consequence of his condition. As authority for this proposition, plaintiff cites Cole v. Rush, supra, 45 Cal.2d 345, 289 P.2d 450.

In that case, plaintiff filed an action against defendants for the wrongful death of her husband. Plaintiff's husband, described as an able-bodied man of quiet demeanor, repeatedly patronized the defendants' establishment, where, after becoming intoxicated, he became belligerent, pugnacious and quarrelsome, a fact with which the defendant-proprietors were familiar. Plaintiff repeatedly asked defendants to refrain from serving her husband such quantities of liquor as would cause him to become intoxicated. The complaint alleged that defendants repeatedly refused to honor this request. Ultimately, plaintiff's husband, acting under the influence of liquor served by defendants, engaged in a fist fight with another patron of the bar and was killed. Defendants demurred to plaintiff's wrongful death complaint, the demurrer was sustained and judgment of dismissal entered accordingly. On appeal, the Supreme Court affirmed the trial court's judgment. The court initially noted that, “The common law gives no remedy for injury or death following the mere sale of liquor to the ordinary man, either on the theory that it is a direct wrong or on the ground that it is negligence, which imposes a legal liability on the seller for damages resulting from the intoxication.” However, it said that plaintiff sought to bring herself within an exception to that rule, by urging that, “* * * knowledge on the part of the defendants of the propensities of Cole to seek a quarrel when intoxicated, and * * * their wilful refusal to heed the pleas of the wife, and their wilful insistence in selling intoxicating liquor to Cole and allowing him to be intoxicated' are distinguishing factors which support the charge of negligence here and establish the sale of the liquor as the proximate cause of the injury.' The court concluded, ‘Such a view, * * * in the light of the common law, cannot be sustained in this state in the absence of legislative action.’

The court noted that in Fleckner v. Dionne, supra, 94 Cal.App.2d 246, 210 P.2d 530 the plaintiff had alleged specific knowledge on the part of the supplier of alcoholic beverages that he was serving a minor who was already under “the severe influence of intoxicating liquors” and that the minor had with him an automobile which he was likely to drive home, and that such driving by the minor would cause an undue risk of injury to third parties. Monetheless, the order sustaining defendant's demurrer was affirmed by the District Court of Appeal and the Supreme Court denied hearing. The court in Cole declined to alter the rule of Fleckner v. Dionne, suprai.

The Cole and Flackner cases appear to control the instant appeal. In all three cases, plaintiffs alleged that defendants served intoxicating liquor to their patrons having knowledge that their actions would, for various reasons, have a greater debilitating effect upon those parties than it would have upon the hypothetical average patron. Plaintiff's attempts to distinguish the items of knowledge allegedly possessed by the defendants in Cole and Fleckner and those known by defendant Sager are unpersuasive. Plaintiff asserts that the instant case may be distinguished from Cole in that in Cole, the complaint admitted that the patron was an ‘ablebodied’ man while here the complaint alleged that defendant knew the patron was incapable of exercising volitional control over his intake of alcoholic beverages. He suggests that had this allegation been made in Cole, the demurrer would not have been sustained. We do not agree. The facts alleged in the Cole complaint indicate that, whether or not the patron there could theoretically exercise volitional control over his intake, in fact, he chronically did not exercise such control, but rather became regularly intoxicated at defendants' establishment, all of which was known by defendants. Further, the Cole defendants were alleged to have known that when intoxicated, their patron engaged in conduct dangerous to both himself and others. That the patron's drunken and dangerous condition resulted in the one case from a conscious, volitional decision, and in the other from an inability to limit one's intake is a distinction which serves only to elevate form over substance. If the defendants in either case were alleged to have committed irresponsible acts, those acts consisted of supplying intoxicating quantities of liquor. The fact that this act did not lead to liability in Cole dictates that no liability may be found here. (See also Fuller v. Standard Stations, Inc., 250 Cal.App.2d 687, 58 Cal.Rptr. 792; Slawinski v. Mocettini, 217 Cal.App.2d 192, 31 Cal.Rptr. 613; Thomas v. Bruza, 151 Cal.App.2d 150, 311 P.2d 128; Hitson v. Dwyer, supra, 61 Cal.App.2d 803, 143 P.2d 952.)

Plaintiff also relies on Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147, wherein the Arizona Supreme Court allowed plaintiff-wife to recover against defendant bar owners who had sold intoxicating quantities of liquor to her husband, thus depriving plaintiff of her husband's consortium. The court sustained a judgment in favor of the wife, recognizing a cause of action, created by American case law, in either the husband or wife against third parties who supply to his spouse habit forming drugs without a prescription, when the supplier knows or should know that the purchaser is unable to exercise volitional control over his consumption of the drug, and where the effect of the consumption is to cause or aggravate the habitual use of the drug. The court further declined to draw any distinction between ‘narcotic’ drugs such as opium or cocaine, and alcohol. (See also Hoard v. Peck, 56 Barb.N.Y. 202; Holleman v. Harvard, 119 N.C. 150, 25 S.E. 972; Flandermeyer v. Cooper, 85 Ohio St. 327, 98 N.E. 102; Moberg v. Scott, 38 S.D. 422, 161 N.W. 998.) It cannot be gainsaid that Pratt and subsequent cases have created in Arizona a cause of action on behalf of the consumer of alcoholic beverages and his immediate family, and, at least, arguably other third parties, against the supplier of the spirits, for damages sustained by the consumer or his family and, potentially, other unrelated persons as the result of the consumption of the alcohol, where the supplier knew or should have known that the consumer was incapable of exercising volitional control over his intake. (See also Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125; Vallentine v. Azar, 8 Ariz.App. 247, 445 P.2d 449.) The Arizona courts have said that in such situations, the act of supplying the intoxicant is merged with the act of consuming it to constitute the proximate cause of the injury sustained.

While, viewed as an original proposition, the position adopted by the Arizona courts may have considerable merit, we do not feel free to emulate their example. For the reasons stated above, we find that the rules of Fleckner and Cole are applicable to the factual situation considered by the Arizona courts in Pratt, Collier and Vallentine, and alleged in the complaint in the instant case. As an intermediate appellate court, we do not feel at liberty to modify the rules of Fleckner and Cole in the absence of a contrary pronouncement from our Supremen court or our Legislature. (Fuller v. Standard Stations, Inc., supra, 250 Cal.App.2d 687, 58 Cal.Rptr. 792; Goncalves v. San Francisco Unified School Dist., 166 Cal.App.2d 87, 332 P.2d 713.)

We have noted with interest the case of Deeds v. United States (D.C.Mont., 1969) 306 F.Supp. 348, which capably summarized the arguments both for and against the imposition of liability on suppliers of alcoholic beverages, and, attempting to anticipate the development of Montana law, which was then silent on the subject, imposed liability on a supplier while specifically rejecting the California decisions to the contrary. We have also read Justice Friedman's critique of the Fleckner and Cole decisions, and agree that those cases constitute an anomaly in California law. (See Fuller v. Standard Stations, Inc., supra, 250 Cal.App.2d 687, 58 Cal.Rptr. 792.) As a general proposition, the issue of proximate causation involves factual considerations and is thus left to the trier of fact. Thus, the rule of Fleckner and Cole, that the act of serving alcoholic beverages is never the proximate cause of the injuries inflicted by the consumer as the result of his intoxication, is seemingly unique in California law. Nonetheless, it is the rule, and like Justice Friedman, we feel bound by it. We also note that the Supreme Court declined to grant hearing in Fuller. While denial of a petition for hearing does not have the same effect as an opinion affirming the decision of the Court of Appeal, neither is it without significance as to the views of the Supreme Court. (Di Genova v. State Board of Education, 57 Cal.2d 167, 178, 18 Cal.Rptr. 369, 367 P.2d 865; Cole v. Rush, supra, 45 Cal.2d 345, 351, fn. 3, 289 P.2d 450.) In the absence of a contrary expression by the Supreme Court or the Legislature, we feel bound by the rule of Fleckner and Cole as reaffirmed in Fuller.

Next, plaintiff asserts that the rule of Cole v. Rush, supra, and Fleckner v. Dionne, supra, 94 Cal.App.2d 246, 210 P.2d 530, has been implicitly overruled by the opinion of the Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. A reading of Dillon reveals that in that opinion, the court was concerned with the question of the scope of the duty of care. However, as noted above, the precise rulings in Cole and Fleckner were that the act of supplying intoxicating quantities of liquor to a patron is not the proximate cause of injuries the patron may thereafter inflict on third parties. The Dillon opinion would not seem to have any impact on this rule.

Plaintiff next argues that Business & Profession Code, § 25602, constitutes a civil remedy or dram-shop act, thus granting him a cause of action against the defendants. Business & Professions Code, § 25602, states, in pertinent part: ‘Every person who sells, * * *, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.’ However, in a civil suit, the breach of a criminal statute indicates simply that the defendant owed a duty of care and that the duty was breached. In order to establish liability, it must also be shown that this breach of duty was the cause, in fact, and the proximate cause of plaintiff's injury. And, as previously noted, it is the rule of Fleckner and Cole that, as a matter of law, the acts proscribed by Business & Professions Code, § 25602, do not constitute the proximate cause of injuries inflicted on third parties by intoxicated persons in the absence of some other causative factor. Plaintiff's precise argument in this regard was considered and rejected by the court in Hitson v. Dwyer, supra, 61 Cal.App.2d 803, 143 P.2d 952. (See also Fuller v. Standard Stations, Inc., supra, 250 Cal.App.2d 687, fn. 3, 58 Cal.Rptr. 792.)

Finally, plaintiff asks the court to simply disregard the rule of the Cole and Fleckner cases as he feels the rulings in those cases are incorrect. This same argument was made to the Supreme Court in Cole:

‘For this court to hold that plaintiffs have here stated a cause of action by averring facts which establish that no cause of action arose either by statute or by common law as the same existed at the time of the events relied upon would at the least constitute a departure from its constitutional function and an encroachment on that of the Legislature.

‘The significance of legislative action in the light of established law and of pertinent judicial decisions has been repeatedly recognized in this state * * * The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.

‘Accordingly, it is to be noted that notwithstanding the ruling of this court in Lammers v. Pacific Electric Ry. Co. (1921) supra, 186 Cal. 379, 384, 199 P. 523; and of the District Court of Appeal in Hitson v. Dwyer (1943) supra, 61 Cal.App.2d 803, 808, 143 P.2d 952, and in Fleckner v. Dionne (1949) supra, 94 Cal.App.2d 246, 210 P.2d 530, the Legislature of California has at no time seen fit to adopt a statute inconsistent with the common law so far as concerns a remedy for injury or death following the furnishing of liquor to the ordinary man. Demonstrating awareness by the Legislature of problems relating to the furnishing and consumption of intoxicating liquors, and a similar awareness in respect to problems of tort liability, it is pointed out (without attempting to go back as far as the Lammers case in 1921) that in the 10 years immediately following the Hitson case (1943) the Legislature made numerous changes in statutes governing the sale, use, and furnishing of intoxicating liquors [citations] and also in statutes having to do with various aspects of tort liability [citations], but there was no adoption of a statute imposing liability in such a case as is now before us. Under such circumstances not only does the legislative intent appear to be to maintain, rather than to depart from, the pertinent common law, but * * * it becomes manifest that the common law is the controlling law in this case.’ (pp. 354–356, 289 P.2d pp. 455–456.)

It has been fifteen years since the Supreme Court in Cole disavowed any intent to reform the liability rule in California. Since that time the Legislature has declined to act. In light of the forebearance exercised by both the Supreme Court and the Legislature, we feel that no discretion has been left us in this matter.

Judgment affirmed.

I concur in the affirmance of the judgment, because I agree that, as an intermediate appellate court, we have no alternative. For the reasons set forth in Fuller v. Standard Stations, Inc., 250 Cal.App.2d 687, 694, 58 Cal.Rptr. 792, 796; Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450, is probably distinguishable. ‘It is not Cole which stands as binding precedent here, but rather Fleckner v. Dionne [94 Cal.App.2d 246, 210 P.2d 530] as approved in Cole.’ (Fuller v. Standard Stations, Inc., suprai.)

It may well be that a change in the rule of nonliability should be made, if at all, by the Legislature. (But cf. Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 218–219, 11 Cal.Rptr. 89, 359 P.2d 457; Keeton, ‘Creative Continuity In The Law of Torts,’ 75 Harv.L.Rev. 463.) Nevertheless, the rule and reasoning in Fleckncr as approved in Cole should be reexamined. Fleckner and, indeed Cole, ‘approach the initial adjudication of negligence via the obsolete gateway of proximate cause rather than duty.’ (Fuller v. Standard Stations, Inc., supra, 250 Cal.App.2d 687, 694, 58 Cal.Rptr. 792, 796.) Such approach does not reach the underlying policy considerations and does and not provide a rational answer to plaintiff's contention that a civil duty was owed him by defendant by virtue of Business and Professions Code, section 25602. Unlike the plaintiff in Hitson v. Dwyer, 61 Cal.App.2d 803, 808, 143 P.2d 952, plaintiff in the case at bench is a member of the class to whom protection was meant to be afforded by the legislation.

GARDNER, Presiding Justice.

TAMURA, J., concurs.

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