Belding v. Johnson , 86 Ga. 177 ( 1890 )

Simmons, Jnstice.

Under the facts alleged iu the declaration, which will be found set out in the official report, there was no error in sustaining the demurrer and dismissing the case. Under these facts, we do not think Johnson was liable to the widow of Belding on account of her husband’s having been killed by Whitlock in Johnson’s bar-room. The declaration alleges that Johnson sold liquor to these parties in the forenoou, and that the quarrel between the latter then originated, in regard to a wager they had made;-yet the homicide did not occur until the afternoon, when Belding again entered the bar-room for the purpose of obtaining the watch he had wagered with Whitlock in the forenoon ; he did not enter as a customer or guest, but upon his own private business. He then met Whitlock the last time, the quarrel was renewed and he was killed.

Onr statute allows a recovery by certain named persons for a homicide when “ the death of a human being results from a crime or from criminal or other negligence.” Acts 1887. p. 45. It is sought to make Johnson liable iu this action because he furnished liquor to Whitlock when drunk and failed to protect Belding against Whitlock, both being in his saloon at the time' of the homicide, and Johnson himself being present. Under the facts as alleged, we do not think this was such negligence or misconduct ou the part of Johnson as would authorize the widow to recover against him, especially as Belding was. not even a guest or customer of Johnson at the time. Our code, §§3072 — 3, declares; “If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrong-doer.. Damages which are the legal and natural result of the act ,done, though contingent to some extent, are not too remote to be recovered. But damages traceable to the act but not its legal or material consequence, are too remote and contingent.” Under these sections of the code, we think the damages too remote to be recovered. “Other aud contingent circumstances” preponderated largely in causing the homicide; aud the damages, though traceable remotely to the act of selling the liqnor, are not the “ legal and material consequence” of the act. They do not arise directly from that act, but from the act of shooting, and indirectly from the bet made between Belding and Whitlock, Whitlock’s refusal to give up the watch, and Belding’s return in the afternoon to recover it aud his preparation for a fight with Whitlock. These indirect elements are more proximate than is that of furnishing the liquor. There are many cases in the reports where recoveries have been had against barkeepers for injuries arising from the sale of liquor to persons, but all of them, so far as we have ascertained, except the case of Rommel v. Schambacher, 120 Pa. St. Rep. 579, are founded wholly upon special statutes authorizing l’eeovei’y for such injuries. In no other State has the right to recover been placed upon common law principies; and several of the courts, in discussing the question, say'that no recovery conkl be had at common law. As we have no special statute in this State authorizing such recovery, andas the two sections above cited from our code are declaratory of the common law of this State, and as we think that under these sections the damages claimed are too remote, we affirm the judgment.of the court below sustaining the demurrer and dismissing the case. Even Rommel v. Schambacher, supra, would not be a precedent for recovery in a case of homicide, for at common law, homicide gave no cause of action. Besides, Pennsylvania had a statute upon which the decision in that case could have been predicated. Judgment affirmed.