APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.
Mr. V. L. Hash, for Appellant.
Messrs. Kramer, Morrison, Roche & Perry, for Appellee.
Kelly, Superior Judge.
Stanford, C. J., and Morgan, J., concur. LaPrade, J., being disqualified, the
Honorable Henry C. Kelly, Judge of the Superior Court of Yuma County, was called
to sit in his stead.
Kelly, Superior Judge.
[63 Ariz. 286] This is an appeal by plaintiff from a final order dismissing her complaint upon defendant's
motion, the ground assigned being that it fails to state a cause of action.
To recapitulate the allegations of the complaint briefly, but with no omission affecting the merits, they are: That the defendant, a licensed tavern keeper, unlawfully [63 Ariz. 287] sold a tall drink of highly intoxicating liquor to a child of the age of fifteen years; that the child drank of the liquor and immediately became intoxicated; that her intoxication led forthwith to her detention by officers of the law as a juvenile delinquent; that the plaintiff, as the mother of said child and having her sole custody, has been deprived inter alia of the services of said child. Her prayer is for both compensatory and punitive damages.
As an incident to the appeal, and because the trial court struck from the complaint the prayer for exemplary damages, appellant asks also for an advisory opinion as to whether under the facts exemplary damages may be assessed.
There is disagreement between counsel for appellant and appellee as to the precise basis for the order of dismissal, or, more precisely, as to whether the order itself or the reason assigned for it is the subject of the appeal. The reasons assigned are surplusage; it is only the correctness of the judgment and not of the process of reasoning by which it was come to that will be considered.
The material allegations of the complaint and all reasonable intendments arising from them are presumed to be true. By them it clearly appears that the sale was unlawful; that at least consequentially thereto the plaintiff has suffered a damage which the law recognizes as compensable. The action being founded upon tort, the substantial question presented for solution by this appeal is one as to whether, upon the facts as stated in the complaint, an issue of fact is tendered and could be submitted to court or jury for determination, under established principles of liability for tort, that the wrongful act in making the sale was a proximate cause of the resultant damage.
For the appellant many cases are cited which hold that the violation of law is per se negligence, and [63 Ariz. 288] actionable when damage results therefrom. There can be no dissent from this principle, very aptly set forth in Salt River ...