DOROTHEA COLE et al., Appellants, v. PAUL RUSH et al., Defendants; FRANK VAN STONE, Respondent, 45 Cal. 2d 345

SCHAUER, J. — In this wrongful death action plaintiffs, who are the surviving widow and minor children of James Bernard Cole, deceased, seek to recover damages for the allegedly negligent furnishing of intoxicating liquor to the deceased, which plaintiffs claim proximately caused his death. They appeal from an adverse judgment entered upon the sustaining of a demurrer to their amended complaint, without leave to amend. We have concluded that the trial court correctly held that the complaint does not state facts sufficient to constitute a cause of action, and that the judgment should be affirmed.

The material allegations of the amended complaint are that defendants own and operate an establishment known as the Tropic Isle in which “intoxicating liquors are sold and furnished to the public for consumption on the premises”; on October 13, 1950, James Bernard Cole was a patron of the Tropic Isle and defendants “did sell, furnish, give, and cause to be sold, furnished and given” to him alcoholic beverages which he drank; immediately before he came “to the premises of the defendants . . .

Cole was not intoxicated by reason of the use of alcoholic beverages,” but he “did drink said alcoholic beverages so sold, furnished and given until and after . . . [he] became intoxicated.” Cole had patronized the Tropic Isle on numerous occasions and was well known to defendants, who also knew that he was “normally of quiet demeanor but that when . . intoxicated he became belligerent, pugnacious and quarrelsome”; on numerous prior occasions plaintiff widow had requested defendants “not to sell or furnish intoxicating beverages to said James Bernard Cole sufficient to allow him to become intoxicated thereon” (italics added), but defendants refused to comply with such requests; “by reason of said intoxication, and by reason of said alcoholic beverages so unlawfully sold, furnished or given . . . and as a proximate result thereof, . . .

Cole became belligerent, pugnacious and quarrelsome; . . . Cole did thereafter on said date quarrel with one Franklin Leonard; . . . Cole and . . . Leonard did engage in fisticuffs; . . . Cole was struck by . Leonard and did fall to the pavement, striking his head against the concrete, by reason of which . . . Cole suffered a subarachnoid hemorrhage, traumatic, and died immediately from the effects of said blow”; at the time of his death Cole “was an able-bodied man of the age of 39 years,” earning approximately $4,000 a year.

Defendant Frank Van Stone, alleged to be one of the owners of the Tropic Isle, demurred to the amended complaint on the ground that it fails to state facts sufficient to constitute a cause of action. By way of particularizing its insufficiency he specifies, among other things, that the complaint shows on its face that decedent’s injuries were caused or contributed to by fault and negligence on decedent’s part and that it cannot be determined in what manner any acts of the defendant were the proximate cause of the alleged injuries.

Following the hearing upon the demurrer and the statement of counsel for plaintiffs that “he cannot further amend,” the court sustained the demurrer without leave to amend, and judgment was entered accordingly. The general rule of the common law as to tort liability arising out of the sale of intoxicating beverages is stated in 30 American Jurisprudence 573,

section 607: “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.” (For examples of cases following the rule see: Hitson v. Dwyer (1943), 61 Cal.App.2d 803, 808 [143 P.2d 952] ; Fleckner v. Dionne (1949), 94 Cal.App.2d 246 [210 P.2d 530] ; Lammers v. Pacific Elec. Ry. Co. (1921), 186 Cal. 379, 384 [199 P. 523] ; Howlett v. Doglio (1949), 402 Ill. 311 [83 N.E.2d 708, 712] ; Tarwater v.

Atlanta Co., Inc. (1940), 176 Tenn. 510 [144 S.W.2d 746] ; 48 C.J.S. 716-718; see also anno. 44 L.R.A.N.S. 299; 130 A.L.B. 357-369.) A number of jurisdictions have adopted statute's creating a right of action, under specified conditions, against persons furnishing intoxicants. California, however, has enacted no such statute notwithstanding the fact that, as hereinafter shown, its Legislature has repeatedly dealt with problems concerning alcoholic beverages and concerning tort liability.

Plaintiffs with commendable frankness state in their opening brief (p. 3) that they “recognize that it is the general rule of law that it is the consumption of the intoxicating liquor which is the proximate cause of any subsequent injury by reason of such intoxication rather than the sale of intoxicating liquor” (citing Hitson v. Dwyer (1943), supra, and Fleckner v. Dionne (1949), supra; see also Collier v.

Stamatis (1945), 63 Ariz. 285 [162 P.2d 125, 127] : “The principle is epitomized in the truism that there may be sales without intoxication, but no intoxication without drinking”), but urge 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.

Such a view, we conclude in the light of the common law, cannot be sustained in this state in the absence of legislative action. In the first place, it appears that in Lammers v. Pacific Elec. Ry.

Co. (1921), supra, 186 Cal. 379, 384, this court stated and relied on the general rule that “the sale of intoxicating liquor is not the proximate cause of injuries subsequently received by the purchaser because of his intoxication.” In that case the plaintiff, while intoxicated, was ejected from defendant’s passenger train; he left the place of immediate peril where he was ejected but later returned to the tracks at a point about three-quarters of a mile away and was seriously injured.

The court said: 11 The only connection between the ejection and the injury would be the fact that if there had been no ejection there would have been no injury. The sale of the whiskey to the plaintiff would come nearer being a proximate cause of the injury than the ejection from the railway train.

The peril arising from the ejection ceased the moment the passenger left the position where he could be struck by defendant's trains, while the peril arising from the use of the intoxicating liquor continued in operation up to the time of the injury and contributed thereto, and yet 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].) . . .

That the injury was not the proximate result of the ejection is demonstrated by the fact that the plaintiff was able to, and did in fact, leave the place of danger and subsequently of his own volition returned to a position of danger on defendant’s tracks, and that but for plaintiff's action in so returning to a position of danger the accident would not have occurred.” In the second place, it is to be observed that in Fleckner v. Dionne (1949), supra, 94 Cal.App.2d 246, knowledge on the part of the tavernkeeper was, as here, expressly averred.

The allegations of the complaint there were that on the evening in question defendant Dionne, a minor, was a patron of the tavern and was sold and given intoxicating liquors and allowed to consume them in the tavern; that the defendant tavernkeeper knew that Dionne was a minor and sold the liquors to him while he was already under the ‘‘severe influence of intoxicating liquors”; that he knew also that Dionne had upon or near the premises an automobile and would thereafter drive it; that defendant knew and should have known and foreseen that the driving of the automobile by him in his then intoxicated condition could and would result in harm and damage to others upon the highway; that Dionne while so intoxicated negligently drove his automobile into an automobile in which plaintiffs were riding and injured them; that the sale and serving of the liquor to Dionne by defendant constituted a ‘‘negligent disregard of the rights of plaintiffs” which joined with Dionne’s negligence in proximately injuring plaintiffs.

Defendant’s general demurrer was sustained with leave to amend and on plaintiffs’ failure to amend judgment was entered in defendant's favor. The District Court of Appeal affirmed the judgment, relying upon the Hitson and Lammers cases, supra, as well as upon various out-of-state decisions, and this court denied a hearing. Its judgment stands, therefore, as a decision of a court of last resort in this state, until and unless disapproved by this court or until change of the law by legislative action.

It is to be noted that the knowledge alleged in the Fleckner ease was more specific and extensive than that in the instant case. Here it is only alleged that defendant knew of the belligerent disposition of the deceased when he was intoxicated. In the next place, it is to be observed that in Hitson v. Dwyer (1943), supra, 61 Cal.App.2d 803, it was held that one who suffers injuries by reason of his own intoxication may not recover from the tavernkeeper by reason of the sale of the liquor to the plaintiff.

In that case plaintiff alleged that while obviously intoxicated and sitting on a movable stool at defendants’ bar he wrongfully was served intoxicating liquor, and as a result he fell from the stool to the floor, and was thereafter dragged by defendants from his position on the floor; that as a result of the fall or the dragging or both, plaintiff was injured.

It was held that so far as concerned the fall and any injuries suffered therefrom, the proximate cause was the drinking of the liquor rather than the wrongful (i.e., in violation of the alcoholic beverage control act) sale thereof to an obviously intoxicated person, and any wrong in the sale was nonaetionable. This court denied a hearing. If the man who is injured by reason of his intoxicated state may not himself recover from the one who provided the liquor, then it follows that under the established law governing wrongful death actions, his survivors may not recover in this, which is such an action. (Buckley v.

Chadwick (1955), ante, pp. 183, 201 [288 P.2d 12, 289 P.2d 242] ; see also Demge v. Feierstein (1936), 222 Wis. 199 [268 N.W. 210, 212] [liquor sale] ; Scott v. Green- ville Pharmacy (1948), 212 S.C. 485 [48 S.E.2d 324, 3261 |barbiturate sale] ; 30 Am.Jur. 575, § 610.) Other cases, from other jurisdictions, relied upon by plaintiffs are clearly distinguishable on their facts, even if it be assumed that upon similar facts action would lie in California. For example, Cherbonnier v.

Rafalovich (1950). 88 F.Supp. 900, was an action against saloonkeepers by one of their patrons who, while he was eating in the saloon and cafe, was attacked by another patron, one Hobson, who was drunk.

Although dismissing the complaint for failure to state a cause of action in that it was not alleged that defendants knew Hobson was of a violent disposition or had threatened harm to plaintiff before he was served the last of the intoxicating drinks, the court did observe (p. 903) that “The present trend is apparently toward holding the defendant saloonkeeper liable for lawless acts occurring in the saloon,” and .quoted from 30 American Jurisprudence 574.

section 609, the statement that “The better reason appears to favor placing on the proprietor the duty of seeing to it that the patron is not injured either by those in his employ or by drunken or vicious men whom he may choose to harbor Further, a guest or patron of such a place has a right to rely on the belief that he is in an orderly house and that its operator ... is exercising reasonable care to the end that the doings in the house shall be orderly.” Here, if Leonard had been injured by Cole (who was the attacker) and if the former or his next of kin were the plaintiffs, and if it were further alleged that Leonard had been within the defendants’ premises and was there attacked by Cole, we would then have a case to which the Cherbonnier decision might be' pertinent.

Obviously it is not. in point on the facts which are alleged. Rommel v. Schambacher (1887), 120 Pa. 579 [11 A. 779, 6 Am.St.Rep. 732] ; Curran v. Olson (1903), 88 Minn. 307 [92 N.W. 1124, 97 Am.St.Rep. 517, 60 L.R.A. 733] ; and Peck v. Gerber (1936), 154 Ore. 126 [59 P.2d 675, 106 A.L.R. 996], additionally relied upon by plaintiffs, also involve the liability of the saloonkeeper as a proprietor for not using reasonable care in maintaining order for the safety of his guests.

However, as is indicated in the opinions in the cited cases as well as in the annotation in 106 American Law Reports 1003, following the report of Peck v.

Gerber (1936), supra, and as recognized by the court in the Cherbonnier case, the liability of a saloonkeeper in this line of cases appears to be related to that of innkeepers and restaurateurs for injuries to guests or patrons by other guests or persons not connected with the management, and is an exception to the general common law rule of nonliability of the vendor of intoxicating liquor, and furnishes no precedent for imposing liability on the saloonkeeper under the circumstances alleged in the complaint in this ease. In Pratt v.

Daly (1940), 55 Ariz. 535 [104 P.2d 147, 130 A.L.R. 341], plaintiff wife was permitted to recover damages resulting from defendants’ sale of intoxicating liquor to her husband with knowledge of the fact that the husband was an habitual drunkard. Arizona had no civil damage statute. The court there, after discussing the rule as stated in Restatement of the Law of Torts, volume 3,

section 696, that ‘ ‘ One who, without a physician’s direction, sells, or otherwise supplies to a married woman a habit-forming drug with knowledge that it will be used in a way which will cause harm to any of the legally protected marital interests of the husband is liable for harm caused by such drug to those interests unless the husband consents to the wife’s acquisition or use of the drug” and that the same rule applies to a sale to the husband in an action by the wife under similar circumstances (see also 130 A.L.R. 352-365), then goes on to observe (p. 347 of 130 A.L.R.) : “Of course, since there is not the same presumption that the use of liquor will eventually cause the loss of volition that there is with a habit-forming drug, it is incumbent upon plaintiff to prove that to the knowledge of defendant such a stage has been reached by the consumer, but if this fact is once established, in all reason and logic the right of action should be the same in one case as in the other . . . [P. 348.] The allegation of the complaint is that the husband of plaintiff was an ‘habitual drunkard,’ and that the fact was well known to defendants.

The term ‘habitual drunkard ’ has been defined repeatedly, and in almost all of the

definitions the principal element emphasized is that such a person has lost the will power to resist the temptation when the liquor is offered him.” In Collier v. Stamatis (1945), supra, 162 P.2d 125, 126-127, the Arizona court held that no cause of action for loss of services lies against a tavernkeeper who unlawfully sold intoxicating liquor to a child of the age of 15, upon which she became intoxicated, because “It cannot be said as a matter of law that a child of fifteen has neither will nor choice nor discretion whatever”; the court further confirmed that its opinion in the Pratt v.

Daly case rested upon the showing by plaintiff wife that her husband was “incapable of voluntary action.” (See also Cavin v. Smith (1949), 228 Minn. 322 [37 N.W.2d 368. 369].) By contrast, the plaintiffs in the case now before us allege no such lack of volition on the part of the decedent, but, rather, that he was an “able-bodied man” who was not. intoxicated immediately before he entered defendant's establishment on the day in question.

Other cases indicating the court’s awareness of the materiality of the element of volition or of competency, and, hence, of at least contributing responsibility of the voluntary drinker or user, are Seibel v Leach (1939), 233 Wis. 66 [288 N.W. 774], in which the court remarked that “Under the common law it is not an actionable wrong to sell or to give intoxicating liquors to an able-bodied man,” and affirmed a judgment dismissing the complaint; and Scott v.

Greenville Pharmacy (1948, S.C.), supra, 48 S.E.2d 324, 327, in which it was pointed out that the complaint failed to describe plaintiff’s deceased husband “as being without mind or lacking in volition,” in buying and consuming barbiturate capsules during a period of about a year, at the end of which time he committed suicide by hanging himself, and judgment for defendant, who sold the barbiturates, following the sustaining of his demurrer was affirmed. (See also 30 Am.Jur. 575-576, §611.) 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 upon that of the Legislature.

As declared by the court in State v. Hatfield (1951), 197 Md. 249 [78 A.2d 754, 757], in affirming the judgment on demurrer in defendants’ favor in a wrongful death action in which plaintiff widow whose husband was killed by an intoxicated driver sought damages from tavern owners who had sold the liquor, “It would be worse than futile for us to attempt to convince plaintiff by reason, where all other courts have failed and the accumulated mass of authority carries no weight at all.

In the circumstances of this case ... we should virtually usurp legislative power if we should declare plaintiff’s contentions to be the law of Maryland. In the course of the last hundred years there probably has seldom, if ever (except during prohibition), been a regular session of the General Assembly at which no liquor laws were passed. On few subjects are legislators kept better informed of legislation in other states.

In the face of the flood of civil damage laws enacted, amended and repealed in other states and the Volstead Act — and of the total absence of authority for such liability, apart from statute — the fact that there is now no such law in Maryland expresses the legislative intent as clearly and compellingly as affirmative legislation would.” (See also Henry Grady Hotel Co. v. Sturgis (1943), 70 Ga. App. 379 [28 S.E.2d 329, 333].) The significance of legislative action in the light of established law and of pertinent judicial decisions has been repeatedly recognized in this state.

As we have so recently said in Buckley v. Chadwick (1955), supra, ante, pp. 183, 200 [288 P.2d 12, 289 P.2d 242], “It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them.” 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.

In this connection it should be noted that

section 22.2 of the Civil Code of this state specifically declares that “The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.” (See also Philpott v. Superior Court (1934), 1 Cal.2d 512, 515 [36 P.2d 635, 95 A.L.R. 990] ; Gin S. Chow v. City of Santa Barbara (1933), 217 Cal. 673, 695 [22 P.2d 5] ; Munchiando v. Bach (1928), 203 Cal. 457 [264 P. 762] ; Peters v.

Peters (1909), 156 Cal. 32, 34 [103 P. 219, 23 L.R.A.N.S. 699] ; 10 Cal.Jur.2d 651-652, § 2, and cases there cited; 23 Cal.Jur. 603.) Accordingly, it is to be noted that notwithstanding the holding of this court in hammers v. Pacific Elec. Ry. Co. (1921), supra, 186 Cal. 379, 384; and of the District Court of Appeal in Hitson v. Dwyer (1943), supra, 61 Cal.App. 2d 803, 808, and in Fleckner v.

Dionne (1949), supra, 94 Cal.App.2d 246, 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 decision in the Hitson case (1943) the Legislature made numerous changes in statutes governing the sale, use, and furnishing of intoxicating liquors (see e.g., Stats. 1945, pp. 1023, 2295, 2615: Stats. 1947, pp. 2003, 2051, 2490, 2791, 2936, 3019, 3025; Stats. 1949, pp. 492, 1546, 1582, 1884, 2060, 2349, 2735; Stats. 1951, pp. 1897, 2814, 3051; Stats. 1953, pp. 646, 918, 954,1949, 2084, 3345) and also in statutes having to do with various aspects of tort liability (see e.g., Civ.

Code, §§43, 43.5(a), 45a, 46, 47, 48, 48a, 48.5, 171(c), 956, 1714.5, 1714.6, 3341, 3342; Code Civ. Proc., § 377), 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 in the further light of the express enactment (Civ.

Code, § 22.2) that “The common law ... so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all courts of this State,” it becomes manifest that the common law is the controlling law in this case. (Estate of Apple (1885), 66 Cal. 432, 434 [6 P. 7] [“where the code is silent, the common law governs”] ; Estate of Wickes (1900), 128 Cal. 270, 274 [60 P. 867, 49 L.R.A. 138] [“The common law is the rule of decision in this state, where no positive law, state or national, controls”] ; Peters v.

Peters (1909), supra, 156 Cal. 32, 34 [“The common law of England is declared to be the rule of decision in all courts of this state, so far as it is not repugnant to or inconsistent with our constitution and statutes”]; see also Gray v.

Sutherland (1954), 124 Cal.App.2d 280, 290 [268 P.2d 754]; 10 Cal.Jur.2d 652, § 2.) Since it is established both by the common law and by the decisional law in this state (1) that as to a competent person it is the voluntary consumption, not the sale or gift, of intoxicating liquor which is the proximate cause of injury from its use; (2) that the competent person voluntarily consuming intoxicating liquor contributes directly to any injury caused thereby; and (3) that contributory negligence of the decedent bars recovery by his heirs or next of kin in a wrongful death .action, the judgment must be, and it is, affirmed.

Gibson, C. J., Edmonds, J., and Traynor, J., concurred. By what standards or tests the defendants on any occasion might determine the amount which properly could be furnished is not disclosed. It appears that such a statute has been adopted in Arkansas, Colorado, Conneetieut, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan. Minnesota, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Washington, West Virginia, Wisconsin. (See 48 C.J.S. 717-718, $ 431; 30 Am.

Jur. 576, § 612; Ann.Cas. 1917B, p. 534; Black on Intoxicating Liquors, $ 277, pp. 326-331; see also 6 A.L.R.2d 798-807.) Denial of a hearing is not the equivalent of express approval by this court but it has been said that “The order of this court denying a petition for a transfer . . . after . . . decision of the district court of appeal may be taken as an approval of the conclusion there reached, but not necessarily of all of the reasoning contained in that opinion.” Eisenberg v. Superior Court (1924), 193 Cal 575, 578 [226 P. 617]; see also People v.

Rowland (1937), 19 Cal.App.2d 540, 542 [55 P.2d 1333].) The significance of a denial in any particular ease is also to be understood as further qualified by the fact that under the Buies on Appeal a denial may mean no more than that a ground which we deem adequate or impellent for ordering a hearing has not been brought to our attention. (See rule 29, Rules on Appeal.)