the proximate cause of injury is the patron’s voluntary consumption of liquor, not the defendant’s illegal sale of it
How later courts described this case
- the proximate cause of injury is the patron’s voluntary consumption of liquor, not the defendant’s illegal sale of it
Written by the judges who cited it.
The opinion
DOOLING, J.
I dissent. I frankly admit that the cases from other judisdictions are all to the effect that in the absence of statute no remedy exists against the dispenser of liquor for injuries resulting to third persons from the acts of intoxicated persons. However, considered as questions of the law of negligence and proximate cause, I cannot bow to the reasoning of those decisions when carried to the full extreme of holding that under no circumstances can one who dispenses liquor to another knowing that he is becoming intoxi *252 cated be liable to a third person later injured by the intoxicated person’s conduct; and I can see no reason for perpetuating in the law of this state the error of the courts of other jurisdictions.
Negligence is measured by what a person of ordinary prudence would or would not do under the same or similar circumstances and it is thoroughly settled that negligence may be the proximate cause of an injury to another even though the act of a third person intervenes, if a person of ordinary prudence could reasonably anticipate the probability of the third person’s intervening conduct. (McEvoy v. American Pool Corp., 32 Cal.2d 295 , 299 et seq. [ 195 P.2d 783 ] ; Mosley v. Arden Farms Co., 26 Cal.2d 213 , 218 et seq. [ 157 P.2d 372 , 158 A.L.R. 872 ] ; Katz v. Helbing, 215 Cal. 449 [ 10 P.2d 1001 ].)
The complaint in this action alleges in effect that the defendant Pangracs (sued as Richard Roe) sold to the defendant Edward G. Dionne, a minor, intoxicating liquor knowing that he was already intoxicated, knowing that he had an automobile on or near the premises and knowing that he would thereafter drive the automobile. It is further alleged that defendant Pangracs knew or should have known that the driving of the automobile by Dionne in an intoxicated condition could and would result in damage to others on the highway, that the injuries to plaintiffs resulted from a collision with the car driven by Dionne while in an intoxicated condition and that the damage to plaintiffs was a proximate result of Pangracs’ negligence in selling the liquor to Dionne.
Despite the unanimity of decision in other jurisdictions to the contrary these allegations in my opinion are sufficient to state a cause of action. We have conduct alleged on the part of the defendant Pangracs which would increase the intoxication of Dionne and the allegations that Pangracs knew that Dionne would drive his automobile when he left the premises and knew or should have known that his driving in an intoxicated condition would imperil the safety of others on the highway. This is sufficient to establish negligence in the sale of the liquor. We have the further allegations that the foreseeable happened and plaintiffs were injured by Dionne driving his automobile while intoxicated. Under the eases above cited this establishes proximate cause.
The cases are legion that the owner of an automobile entrusting it to an intoxicated driver or to one known to be addicted to intoxication may be liable for damages resulting to third persons from the intoxicated person’s driving. (Knight v. *253 Gosselin, 124 Cal.App. 290, 294 [ 12 P.2d 454 ]; Department of Water & Power v. Anderson, 95 F.2d 577 ; R. J. Reynolds Tobacco Co. v. Newby, 153 F.2d 819 ; Tolbert v. Jackson, 99 F.2d 513 ; Powell v. Langford, 58 Ariz. 281 [ 119 P.2d 230 ] ; Mitchell v. Churches, 119 Wash., 547 [ 206 P. 6 , 36 A.L.R. 1132 ]; Krausnick v. Haegg Roofing Co., 236 Iowa 985 [ 20 N.W. 2d 432 , 163 A.L.R. 1413 ]; Chaney v. Duncan, 194 Ark. 1076 [ 110 S.W.2d 21 ] ; V. L. Nicholson Const. Co. v. Lane, 177 Tenn. 440 [ 150 S.W.2d 1069 ]; Levy v. McMullen, 169 Miss. 659 [ 152 So. 899 ]; Crowell v. Duncan, 145 Va. 489 [ 134 S.E. 576 , 50 A.L.R. 1425 ] ; Brady v. B. & B. Ice Co., 242 Ky. 138 [45 S.W.2d 1051]; Worsham-Buick Co. v. Isaacs, (Tex.Civ.App.) 56 S.W.2d 288 ; Baader v. Driverless Cars, 10 La.App. 310 [ 120 So. 515 ]; Crisp v. Wright, 56 Ga.App. 338 [ 192 S.E. 390 ] ; Owensboro Undertaking & Livery Assn. v. Henderson, 273 Ky. 112 [ 115 S.W.2d 563 ].)
I confess to an inability to distinguish these cases in principle from the ease before us. If it is negligence to entrust an automobile to an intoxicated person or one addicted to intoxication why is it not negligence to furnish liquor to a person to the point of intoxication knowing that he is going to drive an automobile while in that condition 1 The reasoning of the eases that it is the drinking of the liquor and not the selling of it which causes the injury does not impress me. As well say in the cases last cited that it is the driving of the automobile which causes the injury and not the entrusting it to the intoxicated person. In either case if his intervening act is reasonably foreseeable the chain of causation is not broken by the act of the person intoxicated.
Hitson v. Dwyer, 61 Cal.App.2d 803 [ 143 P.2d 952 ] is distinguishable. There the drunken man sued for injuries to himself. Under settled rules of contributory fault I concede that he could not recover.
I would reverse the judgment.
A petition for a rehearing was denied November 19, 1949, and appellants’ petition for a hearing by the Supreme Court was denied December 15,1949. Carter, J., voted for a hearing.