Meade v. Freeman , 93 Idaho 389 ( 1969 )

SHEPARD, Justice.

This case arrives here procedurally as a result of the dismissal of the complaint of plaintiffs-appellants. Defendants Arana and Ceiestine moved for summary judgment. The court construed the motion as one for dismissal (I.R.C.P. 12(b) (6)) and issued a memorandum decision and order of dismissal. The dismissal did not apply to defendant Freeman and the case is in abeyance as to him, pending the outcome of this appeal. Appellants assign such dismissal as error. For the purposes of the motion and this appeal, it is axiomatic that the well pleaded allegations of the complaint are deemed admitted. Walenta v. Mark Means Co., 87 Idaho 543, 394 P.2d 329 (1964).

The material allegations of the complaint in substance are: Arana and Ceiestine are owners and operators of premises licensed for the retail sale of liquor and located in Garden City, Idaho. The defendant Freeman entered the premises while he was obviously, actually and apparently intoxicated. The defendants, either personally or through employees, served liquor to Freeman, well knowing or having good reason to know that Freeman upon leaving the premises would drive an automobile upon the highway. Freeman departed the premises and while still intoxicated negligently caused and was involved in an automobile accident in which one Meade was killed. Plaintiffs are the surviving widow and children of Meade and bring the action under the authority of Idaho’s wrongful death statute, I.C. § 5-311. The serving of liquor to Freeman while he was intoxicated was in violation of our criminal statute. I.C. § 23-929.

The case then presents no factual issues to the court and neither party contends that there are factual issues. The facts are classic in their simplicity, but the legal questions presented are exceedingly complex and of first impression in Idaho. The trial judge concluded in his well reasoned memorandum decision that to support the plaintiffs’ contentions and theory would require a change in the common law. He states that such is not the province of a district court and should be left to the decision of this Court.

I.C. § 73-116, provides:

“The common law of England, so far as it is not repugnant to, or inconsistent' with, the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule or decision in all courts of this state.”

In earlier years many states adopted statutes commonly known as dram shop acts, which placed liability in various degrees upon vendors of intoxicants for the torts of their customers. Some states made the liability almost absolute while others established liability only when the vendor sold to an already intoxicated customer or to a minor. With the ebb of the temperance crusades and the repeal of that noble experiment called Prohibition, some states repealed their dram shop acts. As of 1966 some 21 states still maintained such statutes.

Idaho at one time did have a limited form of dram shop act. First passed in 1891 (S.L.1891, § 5, p. 34), it appeared as Idaho Political Code (1901), Ch. 58, § 1507.¹ In slightly amended form, it became Revised Codes of Idaho (1908), Ch. 33, § 1511, and remained in effect until 1915, when the entire state of Idaho adopted prohibition. S.L.1915, Ch. 28, §§ 1, 2, 3.² The prohibition statutes repealed by implication those statutes which previously had treated purveyance of intoxicants for beverage purposes as legitimate business, among which was the dram shop act. This fact is related to in a note preceding Compiled Laws (1918), Title 20, Ch. 116, at 662.³ Since that time, no dram shop legislation has existed in Idaho.

As said by Llewellyn, on the common law in general:

“whatever one may say in praise of Our Lady of the Common Law (to whom I do bow), clarity and precise outline of her rules of law are not the chief jewel in her crown.” Llewellyn, the Common Law Tradition.

However, it is quickly discerned that at common law no cause of action existed of the type for which appellants argue here. State for Use of Joyce v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951); Lee v. Peerless Insurance Co., 248 La. 982, 183 So.2d 328 (1966); Cowman v. Hansen, 250 Iowa 358, 92 N.W.2d 682 (1958); Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530 (1949); Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450, 54 A.L.R.2d 1137 (1955); 48 C.J.S. Intoxicating Liquors § 430, p. 716 (1947, 1968 Supp.); 30 Am. Jur. 821, Intoxicating Liquors § 521 (1958, 1968 Supp.) ; Anno. 130 A.L.R. 357; Anno. 75 A.L.R.2d 833. Even those cases relied upon by appellant clearly state that the common law did not authorize such a cause of action, but those courts then proceeded to deal with statutes interpreted as changing the common law. Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821 (1959) ; Adamian v. Three Sons, Inc., 353 Mass. 498, 233 N.E.2d 18 (1968) ; Dissenting opinion, Fleckner v. Dionne, supra.

Appellants argue that liability of the type sought here should be imposed on a commercial vendor of intoxicants for a number of reasons. They argue that a combination of Idaho statutes together with certain decisions of this Court in the field of torts, when blended with decisions of a small minority of states, amalgamate to produce a liability which was unknown at common law. Appellants contend that our legislature changed the common law when it enacted our wrongful death statute. I.C. § 5-311. They further propose that decisions of this Court dealing with multiple causation, Pigg v. Brockman, 85 Idaho 492, 500, 381 P.2d 286 (1963), and cases cited therein; Lindhartsen v. Myler, 91 Idaho 269, 420 P.2d 259 (1966), and negligence per se, Petersen v. Parry, 92 Idaho 647, 448 P.2d 653 (1968) ; Riley v. Larson, 91 Idaho 831, 432 P.2d 775 (1967) ; Chard v. Bowen, 91 Idaho 521, 427 P.2d 568 (1967) ; Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768 (1966) ; Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963) ; Brixey v. Craig, 49 Idaho 319, 288 P. 152 (1930), combine to establish: (1) that the act of serving liquor to one already intoxicated is violative of a statute and hence negligence per se; (2) that there can he more than one proximate cause and therefore the consuming and serving of intoxicants can be multiple causes, and the consumption is not necessarily an intervening cause which shields the vendor. On supervening cause, see Lundy v. Hazen, supra; Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964) ; Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960).

• Appellants’ theory runs squarely in the face of almost all authority. It is nearly universally held, State for Use of Joyce v. Hatfield, supra; Lee v. Peerless Insurance Co., supra; Cowman v. Hansen, supra; Fleckner v. Dionne, supra; Cole v. Rush, supra; 48 C.J.S. Intoxicating Liquors § 430, p. 716 (1947, 1968 Supp.); 30 Am.Jur. 821, Intoxicating Liquors § 521 (1958, 1968 Supp.); Anno. 130 A.L.R. 357; Anno. 75 A.L.R.2d 833, that it is the consumption of intoxicants that constitutes the proximate cause of damage to third parties resulting from the tortious or unlawful acts of the consumer and that the vending of intoxicants is too remote to be considered a proximate cause. Put another way, the common law holds that it is not actionable negligence to serve intoxicants to an able bodied man. Cruse v. Aden, 127 Ill. 231, 20 N.E. 73, 3 L.R.A. 327 (1889); Seibel v. Leach, 233 Wis. 66, 288 N.W. 774, 6 N.C.C.A.(N.S.) 629 (1939); 2 W. Woolen and W. Thornton, The Law of Intoxicating Liquors 1837, § 1029 (2 v., 1910); cf. Gardner v. Day, 95 Me. 558, 50 A. 892 (1901); Kraus v. Schroeder, 105 Neb. 809, 182 N.W. 364 (1921); see also Woody v. Coenan, 44 Iowa 19 (1876).

Appellants advert to the theories of “directly ' traceable consequences” and “foreseeability” which combine in the so-called “risk rule” of legal cause. Dewey v. Keller, supra. See also Anno. 155 A.L.R. 157; 100 A.L.R.2d 942; “Impact of the Risk Theory on the Law of Negligence,” 63 Harv.L.Rev. 671 (1950). Again, however, we point out that we are bound by the common law (in the absence of statute) stating that it is the consumption not the vending of intoxicants which is the proximate cause.

Appellants then point to our statutes controlling the sale of intoxicants, I.C. §§ 23-901, 23-929.⁴ They theorize that the enactment of those statutes changes the common law alluded to above and call attention to certain cases sustaining their theory. This theory is the main thrust of appellants’ argument and therefore the cited cases are worthy of review.

Two of the cases cited by appellants, Waynick v. Chicago’s Last Department Store, 269 F.2d 322, 77 A.L.R.2d 1260 (7th Cir. 1959); and Colligan v. Cousar, 38 Ill.App.2d 392, 187 N.E.2d 292 (1963), involved extraterritorial applications of Illinois’ dram shop act and hence are not controlling nor relevant here other than to illustrate the lengths to which a minority of courts will reach out to establish liability. See, however, a partial repudiation in LeGault v. Klebba and Mazure, 7 Mich.App. 640, 152 N.W.2d 712 (1967).

The Florida case of Davis v. Shiappacossee, 155 So.2d 365 (Fla., 1963), involved the sale of beer and whisky to minors seated in an automobile which was analogized by the court as a dangerous instrumentality as contrasted with the establishment of an overall liability imposed on purveyors of intoxicants. See, however, a restriction in Reed v. Black Caesar’s Forge Gourmet Restaurant, Inc., 165 So.2d 787 (Fla.App., 1964).

We arrive at consideration of the two cases principally relied upon by appellants, Rappaport v. Nichols, supra; Adamian v. Three Sons, Inc., supra, and the dissenting opinion in Fleckner v. Dionne, supra. In Rappaport the court had for consideration a factual situation similar to the one presented in the case at bar, except that the alleged unlawful sale had been made to a minor. That court recognized that no liability would have attached to the liquor vendor at common law. It was pointed out that in prohibition days New Jersey had had a civil damage act establishing liability of the type sought, but that the statute had been repealed. The court reviewed the al.cohol beverage control act of New Jersey, which is similar to our Idaho liquor control statutes, and held that those statutes by inference authorized and restored the cause of action which had previously been explicitly provided for by statute and which statute was later repealed. The court further went on to restrict the established liability to commercial vendors and to hold not liable those persons not engaged in the commercial vending of liquor, but who presumably give away liquor to guests in their home.

In Adamian the Massachusetts court was also faced with an early dram shop act establishing the liability sought here, which statute had been repealed by the legislature. That court, not to be daunted in its search for liability, implied the establishment of liability under liquor control statutes similar to Idaho’s and stated:

“The legislative policy, being clear, is not to be rendered futile of practical accomplishment because of the repeal at the end of the prohibition era of the dram shop act which gave an express right of action to persons suffering damage due to a violation of the act.”

We cannot agree that legislative policy is clear when the legislature by statute establishes liability and then specifically repeals the statute at a later time. To state, in such a situation, that the legislature intended the continuation of the liability flies in the face of all logic.

We believe the later Massachusetts case of Dimond v. Sacilotto, 353 Mass. 501, 233 N.E.2d 20 (1968), points out some of the undesirable results of Adamian.

We believe that appellants’ argument, stripped of all embellishments, rediices itself to the basic question: Has our legislature authorized a new cause of action against a purveyor of intoxicants, and if our legislature has not, should this Court declare a new cause of action?

Appellants argue that the enactment of statutes forbidding the retail dispensing of liquor to persons already intoxicated were intended to protect the public against the acts of intoxicated persons. The deceased was a member of the public and he and appellants here were damaged by a person to whom liquor had been dispensed in violation of the statute.

Ignored or overlooked is the existence of other statutes enacted by our legislature, and by many others across the country, which forbid the driving of a motor vehicle while intoxicated and which set a prima facie standard by which one can be judged as too intoxicated to drive. For many years a person has been determined to be too intoxicated to drive if his blood alcohol content exceeded a certain level.. It seems more reasonable to believe that the legislature intended this type of statute to protect its citizens against the wrongs of the drunken driver. We believe that if liability, as sought by appellants here, is to be established it should be done forthrightly by the legislature in the form of a dram shop act, rather than by judicial construction.

Undesirable results have been demonstrated to result by following of the rationale urged by appellants. For example, in Rappaport the court, utilizing a statutory interpretation as is urged upon us by appellants here, found liability when a purveyor of intoxicants served an already intoxicated customer and the customer later had an automobile accident injuring the plaintiff. The court there stated that the results were limited to factual patterns involving the serving of liquor by a licensed retailer in violation of a statute and would not apply to a situation involving the dispensing of liquor by a private person. We submit that it is further illogical to adopt a rule which punishes through the establishment of civil liability one type of purveyor of intoxicants and not another type simply on the basis that one was a licensed commercial establishment which sold liquor and the other was a friend who gave the liquor away. See Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965).

The above observations lead us to the belief that there was no intent on the part of our legislature to, in this fashion, establish this type of cause of action which is non-existent at common law. As above stated, some legislatures have adopted statutes commonly known as dram shop acts which establish liability of the type sought to be established here by appellants. We think it reasonable to assign to our legislators knowledge not only of the social scene and the evils contained therein, one of the greatest of which is the drunken driver, but also legislative developments in other states. In State for Use of Joyce v. Hatfield, supra, the Maryland court .said:

“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.”

We cannot believe that, having a clear and concise method of establishing such liability, our legislature did intend the artificial and esoteric meaning argued by appellants. The case of Moon v. Bullock, 65 Idaho 594, 151 P.2d 765 (1944), presented the question of whether the common law had been changed by the enactment of the wrongful death act to the end that an action for tortious conduct survived the death of the tort-feasor. Therein this Court said:

“If the courts are thereby commanded to create a remedy for a wrong where no remedy existed theretofore; or if they are to recognize a cause of action which abated by reason of the death of a necessary party to it, they would in many instances be called upon to legislate; it would often require them to modify or entirely override positive and well-established rules and laws. The books are full of instances where the courts have had to admit that existing law — statutory or common — did not do exact justice, or did not meet with our revised ideas of justice, but that the remedy lay, not with the courts, but with the Legislature.

“ ‘Reverting, then, to our own state, we recognize that no legislative adoption is necessary to affirm the existence of the common law, but the statutory enactment is essential to repeal, abrogate or change the rules or doctrine of the common law. The rules of the common law are not to be changed by doubtful implication. (Citing cases.) But where the implication is obvious it cannot be ignored. No statute is to be construed as altering the common law farther than its words and circumstances import.’ ”

This then brings us to the final determination regarding whether this Court should, in the absence of statute, declare a change in the common law. We think the answer must be in the negative. Our answer does not depend on our unwillingness to indulge in change. We are aware, as the commentators tell us, that the strength of the common law lies in its capacity to adapt itself to ever changing circumstances. Although traditionally hesitant to change, it should not fail to do so when a hoary doctrine loses its raison d’etre. We are aware that a minority of courts have acted as requested by appellants here. We are convinced that such courts are basically unable to disenthrall themselves of the lurking suspicion that liquor in and of itself is evil. This, in spite of the fact that the legislature here, as in almost every other state, has determined as public policy that liquor is part and parcel of our social scene. Abused it may be; evils it may produce; accidents, injury and death it may cause; marriages and homes it may rupture; unemployment, insolvency and degradation may result from its over use — but legitimate the selling and consuming of it is declared. Indeed both state and federal governments indulge in the taxation and/or wholesaling of it, from which flow great sums of money into governmental treasuries.

We are being asked to single out a particular type of business, which in every other aspect is legitimate and respectable, for the imposition of a liability otherwise unknown in the law. This, for the purpose of alleviating a major social ill in this country, that of mixing the two ingredients — ■ alcohol and automobile. If such is to be done, it should be done by the legislature wherein all of the policy considerations can and should be carefully weighed and from which, per chance, liability of the type sought here will become a reality with the enactment of a dram shop act.

The judgment of the district court is affirmed. Costs to respondents.

McFADDEN, C. J., and SPEAR, J., concur.

1 . “Section 1507. Penalty for Selling to Drunkard After Notice Given : Any wife, mother, father, son, daughter or sister of a person who is an habitual drunkard, or in the habit of getting intoxicated, or the county commissioners, or the mayor of any city, or any county officer, may make complaint to any justice of the peace of the precinct where such person resides or may be staying, or to the probate judge of the county where such person resides or may be staying, alleging the name of such person, the fact of his being an habitual drunkard or in the habit of getting intoxicated, and name or names of the person or persons from whom the person having such habits obtains his liquor, as such relative or officer believes, which complaint shall be verified by the person making the same; whereupon said justice of the peace or said probate judge shall issue a notice in writing to such person or persons so named, notifying him or them that no intoxicating liquors of any kind must be sold or given away by him or them, or at his or their place or places of business, to such person having such habit, which notice must at once be served upon such person or persons as summons are served from justices’ courts. After the service of such notice, if any person or persons so notified shall sell, or give away, or permit any person at his place of business to sell or give away, any intoxicating liquor to such person about whom he or they have received notice as aforesaid, his or their license to sell liquor shall, from that time, be deemed and held to be cancelled and annulled; and said person, and each of said persons, if more than one, shall be liable in a civil action brought in the name or for the benefit of the person making such complaint, in the sum of two hundred dollars for each offense, and the wife, if there be one, may bring such suit without uniting her husband as a party to the action.”

2 . “Section 1. The manufacture, disposal and transportation of intoxicating liquors for beverage purposes are prohibited in the State of Idaho.

Sec. 2. The State of Idaho is hereby constituted a prohibition district, and all statutory provisions now or which may hereafter be in force in prohibition districts, so far as the same are not inconsistent herewith, are made applicable and operative for the enforcement hereof.

See. 3. This Act shall be in force and take effect on and after January first, 1910.”

3 . “S.B. 50 was followed by a brief act creating the entire state a prohibition district, T5, c. 28, p. 83, § 1 of which also appears as § 1 herein. This act became effeetive January 1, 1916. It superseded the local option law, ’09, S.B. 62, p. 9, §§ 1-14, and the high license provisions, B.C. §§ 1506-27, and various other statutory provisions recognizing the liquor traffic as a licensed occupation, e. g. R.C. §§ 2238, 6368, 6784, ’09, S.B. 22, p. 410. Joy v. Carlson (1916) 28 I. 455, 154 P. 640; S. v. Frederic (1916) 28 I. 709, 155 P. 977. By reference it adopted the prior enactments for the enforcement of prohibition in prohibition districts. In this codification, on the authority of § 2 of said act and Be Crane, supra, the effect of state-wide prohibition has been carried out by omitting reference to prohibition districts and making the law of general application.”

4 . “23-901. Declaration of policy — Retail sale of liquor. — It is hereby declared as the policy of the state of Idaho that [it] is necessary to further regulate and control the sale and distribution within the state of alcoholic beverages and to eliminate certain illegal traffic in liquor now existing and to insure the entire control of the sale of liquor it is advisable and necessary, in addition to the operation of the state liquor stores now provided by law, that the commissioner of law enforcement of the state of Idaho and the county commissioners and the councils of cities and the trustees of villages in the state of Idaho be empowered and authorized to grant licenses to persons qualified under this act to sell liquor purchased by them at state liquor stores at retail posted prices in accordance with this act and under the rules and regulations promulgated by said commissioner of law enforcement and under Ms strict supervision and control and to provide severe penalty for the sale of liquor except by and in state liquor stores and by persons licensed under this act. The restrictions, regulations, and provisions contained in this act are enacted by the legislature for the protection, health, welfare and ■ safety of the people of the state of Idaho and for the purpose of promoting and encouraging temperance in the use of alcoholic beverages within said state of Idaho.”

“23-929. Restriction of sales by licensee. — No licensee or his or its employed agents, servants or bartenders shall sell, deliver or give away, or cause or permit to be sold, delivered, or given away, any liquor to :

2. Any person actually, apparently or obviously intoxicated.