GEORGE W. PRATT and B. J. MOORE, Appellants,
ANNA DALY, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Jesse A. Udall, Judge. Judgment affirmed.
Mr. K. Berry Peterson and Mr. Bryce H. Wilson, for Appellants.
Messrs. Krucker & Fowler, for Appellee.
[55 Ariz. 536] LOCKWOOD, J.
This is an action by Anna Daly, hereinafter called plaintiff, to recover damages from George W. Pratt and B. J. Moore, hereinafter called defendants. The material allegations of the complaint, in substance, are as follows:
Plaintiff and one John Daly were husband and wife, living together in Tucson. In November, 1936, Daly was an habitual drunkard, and with full knowledge of this fact, and after warning by plaintiff of his condition, defendants continuously and repeatedly, and over the protest of plaintiff, furnished to Daly intoxicating [55 Ariz. 537] liquors. As a result thereof she was deprived of the consortium which Daly had previously give to her and to which she was entitled as his wife. The prayer was for $ 3,000 in actual and $ 2,000 in punitive damages. Defendants demurred to the complaint on the ground it did not state a cause of action, which demurrer was overruled, and after various other preliminary legal matters were disposed of, the case went to trial before a jury, which returned a verdict in favor of plaintiff, in the sum of $ 500 actual and $ 500 punitive damages, whereupon this appeal was taken.
The first question for us to consider is whether the law recognizes an action of this nature. The theory of the complaint obviously is that defendants were guilty of a tort of some kind which caused an injury to plaintiff, and it is plain from the facts pleaded that the tort, if one existed, sounds in negligence. Actionable negligence is of two kinds, statutory and common law. Whenever a valid statute or regulation provides that a certain thing must or must not be done, if a failure to comply with such regulation is a proximate cause of injury to another, such failure is actionable negligence per se. Salt River Valley W.U. Assn. v. Compton, 39 Ariz. 491, 8 P.2d 249.
Common-law actionable negligence is the failure of one owing a duty to another to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such a person would not have done, which omission or commission is the proximate cause of injury to the other. Salt River Valley W.U. Assn. v. Compton, supra. Let us consider whether the complaint sets up either kind of negligence.
So far as common-law negligence is concerned, it has been held by an unbroken line of decisions that the mere sale of intoxicating liquor to a husband or wife, when it is consumed by the purchaser and thereby [55 Ariz. 538] a situation arises which results in financial injury to the other spouse, does not give rise to an action for damages. These cases are divided into two classes. In the first the rule is merely stated, with a citation to some prior authority, but it is not reasoned out in any manner. It is obvious that cases of this kind have no particular weight in and of themselves for they are necessarily based not only upon the conclusion but the reasoning of the authorities they cite, and, since the stream cannot rise above its source, are dependent upon the cited cases. The second class of cases are those where the reasoning which supports the result is given. In all of this last class of cases the line of reasoning followed is substantially the same. It is (a) the sale of intoxicating liquor is a perfectly lawful act and, therefore, cannot of itself be negligence, and (b) even if the sale is unlawful, it can never cause any harm unless the liquor is consumed by the purchaser.
It is assumed in all of the cases referred to that the consumption is an act independent of and distinct from the sale, depending entirely upon the free will of the purchaser, and it is, therefore, held (and correctly if the premise be true), that (1) the consumption and not the sale is the proximate cause of any injury, and (2) in cases where the husband or wife is plaintiff, the consumer is guilty of contributory negligence which is imputed to plaintiff, and no recovery can be had.
There is not a single case, so far as we can find, where the question was discussed or even raised as to whether the rule was different when the consumer had, to the knowledge of the vendor, reached such a state that his power to drink or not, as he chose, had been destroyed. The only case, so far as we are advised, that even remotely presents and discusses such a factual situation is that of King v. Henkie, 80 Ala. 505, 60 Am. Rep. 119. Therein the court says: [55 Ariz. 539]
"... It is shown that the deceased was helplessly drunk when he purchased and drank the liquor, so much so as to render the exercise of ordinary care by him impracticable, if not impossible. The presumption is that this condition was brought about by his own voluntary or
negligent act, by the persuasion or coercion of another. If we admit that the state of mind thus produced was analogous to that of one non compos, or insane, so that the deceased was in mental darkness and so unconscious as to be at the moment incapable of knowledge or consent, thus rendering him morally unaccountable, yet the fact confronts us that this condition was the result of his own negligence or wantonness, and without it the accident of his death would not probably have occurred. The deceased, by the exercise of ordinary care, might have escaped making himself helplessly drunk. By not doing so he was the author of his own death, in view of the fact that it does not appear that the defendants, after the fatal draught was taken, could by the exercise of ordinary care, or even by any practicable means at hand, have avoided the consequences of death which almost instantly followed...." (Italics ours.)
It will be seen that this case assumes the purchaser at the time he consumed the liquor had full power to drink or not, as he willed.
During the middle of the last century it became apparent that great injury was often done to wives and children as a result of the sale of intoxicating liquor to those who would abuse its use, and in many states what are commonly denominated civil damage acts were adopted. These acts, in substance, provided that if liquor was sold to a person under circumstances set forth in the act, specified parties injured thereby in person, property or lack of support might bring a suit against the vendor for damages. These acts were universally upheld as within the constitutional power of the various legislatures, but as no such statute exists in Arizona, cases from other states based upon civil damage acts are not in point in the present case.
[55 Ariz. 540] In 1866, however, in the case of Hoard v. Peck, 56 Barb. (N.Y.) 202, an action was brought by a husband against a druggist to recover damages for selling to plaintiff's wife large quantities of laudanum to be used by her as a beverage, as a result of which the wife was made ill and her mind affected, so that she was unable to perform her duties as a wife, and the husband lost her affection and society. The claim was made by defendant that the sale of laudanum was lawful, and further that the wife having taken it voluntarily, the proximate cause of the injury was not the vending but the consumption, the defense being similar in all respects in principle to that made in cases under the common law involving intoxicating liquors, to which we have referred. The court said, in upholding the right of action:
"The sale of laudanum as a beverage is very uncommon. It is well known to be poisonous. It cannot be used as a beverage without impairing the physical and mental energies; and this is generally well known, and it certainly is to all druggists.... The druggist, by the act of handing it to her for that purpose, is as much responsible for the consequences as though he assisted her directly in pouring it down her throat. If this were an action for negligence of the defendant, negligence of the wife would prevent the plaintiff from recovering, on the ground that her negligence contributed to the injury; but it is a case where the druggist and wife united in the doing of acts injurious to the interests of the husband....
"In this case, the wife and defendant united and acted in concert, in doing the wrong complained of, and if the defendant had performed his duty to the plaintiff, by informing him what they were doing, the result which was reached would have been prevented."
This is the first case which discussed and recognized the now universally accepted scientific principle that there are substances which, when consumed steadily, effectually destroy the power of the consumer to cease [55 Ariz. 541] their use, and also injure or destroy his normal physical and mental health.
Following this case, in Holleman v. Harward, 119 N.C. 150, 25 S.E. 972, 975, 56 Am. St. Rep. 672, 34 L.R.A. 803, a similar action was brought and the court therein followed the rule laid down in Hoard v. Peck, supra, saying:
"... But laudanum is well known to be a poisonous drug. As a beverage, it cannot be drunk without injury to the body, affecting the health of the physical and moral powers, and this is known to most persons of ordinary intelligence and to all druggists. The defendants knew, taking the complaint in this appeal to be true, that the plaintiff's wife did not buy the laudanum for medicine. They knew that she was buying it as a beverage; that she was violating her duty to her husband in destroying her health, and thereby rendering herself unfit as a companion for him, and to render proper
service in the household. They assisted her, and encouraged her, for gain, with the means of doing all this in face of his frequent protests and warnings. The habit she had formed was the direct result of the use of the drug, which the defendants sold to her in such large quantities, and they knew it, and persisted in it, although repeatedly warned and entreated by the husband not to do so."
-- and using language which intimated, without specifically so holding, that, under some circumstances, the same rule would apply to the sale of intoxicating liquor.
In 1912 the case of Flandermeyer v. Cooper,85 Ohio St. 327, 98 N.E. 102, 105, Ann. Cas. 1913A 983, 40 L.R.A. (N.S.) 360, was decided. It also involved the sale of a habit-forming drug, and the action was brought by the wife on account of a sale to the husband. The damages were not based on the loss of services, nor was there a claim that the wife had lost the financial support of the husband. They were claimed because the husband was deprived of moral [55 Ariz. 542] sensibilities, and was, therefore, ...