Pratt v. Daly

I think most people will agree that if Moore and Pratt, saloonkeepers, sold intoxicating liquors to Anna Daly's husband, after they had been advised by her that he was an habitual drunkard and not to sell to him, and thereby deprived her of his support or society, she should have a right of action against them for whatever damages she sustained, and this right should be extended to his children and other dependents, if any. I certainly think so, and I would not hesitate to join my colleagues in so declaring if it was within the province of the court to create a right of action when none existed theretofore. I cannot, however, permit myself as a member of the judicial department of the government to invade and take over a function of the lawmaking department, however meritorious or appealing the occasion.

The legislatures of a great many of the states have passed what are known as "Civil Damage Acts" giving those persons who have sustained injury from the sale of intoxicating liquors to the father or mother or an infant a right of action against the seller. Joyce on Intoxicating Liquors, page 476, section 420, explains the reason for such legislation as follows:

"In view of the evils resulting from excessive indulgence in intoxicating liquors, such as impoverishment of families, injuries to others, and the creation of public burdens, the legislatures in many states have sought to better control the traffic by enacting statutes giving a right of action in favor of persons injured by the intoxication of another against the one selling or furnishing the liquors causing or contributing to such intoxication. These statutes in most cases having in view the protection of the wife and children of the person intoxicated, and the fact that they are more or less deprived of their means of support by the condition of that person are wider in their scope in some states than they are in others. . . ."

In the following section (421) the author states:

"At common law there was no right of action against the seller of liquor for an injury arising from the intoxication of the purchaser. The right is a statutory one. . . ."

In 15 Ruling Case Law, 429, section 198, it is stated:

"To supply the defect of the common law, which affords practically nothing in the way of remedies for injury or damage caused by intoxication, the legislatures of many states passed statutes giving a right of action in the premises; . . ."

The books are full of cases brought under the civil damage acts, and almost invariably it is stated by the courts that no right of action existed at common law for an injury arising from the intoxication of the purchaser. For instance, in Kennedy v.Garrigan, 23 S.D. 265, 121 N.W. 783, 785, 21 Ann. Cas. 392, the court said:

"No right of action exists save that expressly given by the statute, and the remedy prescribed cannot be enlarged except by further legislative enactment. . . ."

In Healy v. Cady, 104 Vt. 463, 161 A. 151, 152:

"This statute was enacted to compel those who will hazard causing damage by furnishing intoxicating liquor to others to answer for such damage to those who may suffer it. It created a remedy for wrong where there was none before. . . .

"It should be borne in mind, too, that this statute by necessary implication changed the common-law rule of proximate cause which obtains in other tort actions. . . ."

In Schulte v. Schleeper, 210 Ill. 357, 71 N.E. 325, 326:

"The dramshop act is highly penal in its character. It provides remedies unknown to the common law, and we have invariably held that it should be strictly construed, and that a plaintiff must bring himself clearly within its terms. . . ."

In Demge v. Feierstein, 222 Wis. 199, 268 N.W. 210, 212:

". . . This section creates a cause of action in favor of those injured by the intoxication of a minor or habitual drunkard against a vendor of liquor who has been notified in writing by certain specified persons not to sell liquor to him. The complaint contains no allegations that bring the case within the statute. Even if this were not so, no cause of action is stated under the common law against the defendants Feierstein, and, in consequence, no cause of action is stated upon the bond. While plaintiff claims that such a liability exists, she cites no authority supporting this view. The cases are overwhelmingly to the effect that there is no cause of action at common law against a vendor of liquor in favor of those injured by the intoxication of the vendee. Black, Law of Intoxicating Liquors, c. 13, § 281;Buntin v. Hutton, 206 Ill. App. 194; Healey v. Cady,104 Vt. 463, 161 A. 151; Coy v. Cutting, 138 Kan. 109,23 P.2d 458; State v. Johnson, 23 S.D. 293, 121 N.W. 785, 22 L.R.A. (N S.) 1007; Kraus v. Schroedar et al., 105 Neb. 809,182 N.W. 364, 365.

"In view of the common-law rule, it has been necessary, whereopinion favored the creation of such a cause of action, to enactcivil damage laws. . . ." (Italics mine.)

In Seibel v. Leach, 233 Wis. 66, 288 N.W. 774, 775, the court approved what was ruled in the Demge case and added:

". . . Courts may in proper instances apply old rules to newly created conditions, but they cannot create new rules for conditions already regulated. The common law rule holds the man who drank the liquor liable and considers the act of selling it as too remote to be a proximate cause of an injury caused by the negligent act of the purchaser of the drink. The decision inDemge v. Feierstein, supra, sets forth the law controlling in the case at bar."

In Coy v. Cutting, 138 Kan. 109, 23 P.2d 458, 461, the wife instituted the action under the Kansas Civil Damage Act to recover damages, and the court, speaking of such action, said:

". . . it is purely statutory, since no similar cause or causes of action existed at common law, and recovery may be had for both proximate and remote injuries. . . ."

The common law ascribed an injury from intoxication as the proximate result of drinking the intoxicating liquor and not the sale of the liquor. Under the common law, a party, to recover damages for tort of another, must show that his injury was proximately caused by the latter's negligence. It was not enough to show that defendant was remotely at fault. The rule is so inflexibly fixed under the common law, in reference to the use and abuse of liquor, that no court has ventured to change it. Where persons are given redress, it is statutory.

There is no purpose in adding other quotations to the same effect, although they are numerous and from many different state courts.

While the standard authors and the decisions acquiesce in the soundness of the holding in the promiscuous selling or dispensing of habit-forming drugs to a married man or a married woman giving rise to a cause of action against the sellers in favor of those persons injured thereby, no court nor writer on the law has announced that principle as applicable to the sellers of intoxicating liquors until now. The prevailing opinion cites no case so holding, but states that the court in Holleman v.Harward, 119 N.C. 150, 25 S.E. 972, 56 Am. St. Rep. 672, 34 L.R.A. 803, "intimated, without specifically so holding, that under some circumstances, the same rule would apply to the sale of intoxicating liquor." The Holleman case was a drug case and the intimation by the court that the principle that ruled it was applicable to the sale of intoxicating liquors was pure dictum. It would be more convincing if some case or cases could be found applying the habit-forming drug rule to the sale of intoxicating liquors.

This court has stated that it will follow the statement of the common law as made by The American Law Institute, except where otherwise committed by its decisions or where governed by statute. This authority says the expression "habit-forming drugs" does not include intoxicating liquor. Restatement, Law of Torts, vol. 3, p. 696. It refers to the civil damage acts and makes the observation that many of them are "construed to give the same effect to their violation as is given by the common law to the sale of a habit-forming drug to one known to be addicted to the use thereof." Id., c. Special Note. In other words, the rule in habit-forming drug cases has been by statute, as construed, made applicable to liquor sales and not otherwise. The courts have not done it and I protest that we should not, but that it should be left to the legislature to supply the right and the remedy, as has been done in other states.

This is an action by the wife for the wrongful destruction or impairment of consortium through sale of intoxicating liquor to her husband, an habitual drunkard. In the recent comprehensive and understanding work of American Jurisprudence, volume 27, page 99, section 499, it is said:

"There are three such classes of torts by an outsider which involve a violation of a marital right of one spouse against the world: (1) those relating to alienation of affections and criminal conversation; (2) those relating to diminution of consortium resulting from injuries to the other spouse caused by acts of negligence tortious also as to the other spouse, as where a third person through negligent operation of an automobile injures one spouse and thereby effects a diminution of services, society, solace, etc., of the injured to the other spouse; (3) those relating to diminution of consortium resulting from injuries to the other spouse caused by acts not tortious to the other spouse, as where a third person knowingly sells a habit-forming drug to one spouse to be used to satisfy craving, and not for medicinal purposes."

It will be noticed that loss of consortium occasioned by sale of intoxicating liquors to the other spouse is not included in any of the three named classes.