Carlisle v. Kanaywer

Opinion

DRAPER, P. J.

Plaintiffs’ complaint seeks damages for the wrongful death of their husband and father. General and special demurrer to the complaint was sustained with leave to amend. Plaintiffs formally declined to amend, and judgment of dismissal followed. Plaintiffs appeal.

Although the complaint is in four counts, the essence of each is the allegation that decedent was, and was well known to defendant bar owners to be, “a habitual drunkard or an alcoholic and had lost the will power to resist the temptation when liquor was offered to1 him.”

1

It is asserted that defendants nevertheless served liquor to decedent in violation of the penal prohibition (Bus. & Prof. Code, § 25602), “until and after he became intoxicated and unable to care for himself in any manner,” that he became violently ill and died in the bar when he strangled upon inhaling his own vomit.

When the trial court’s ruling was made, it conformed strictly to prevailing authority

(Cole

v.

Rush,

45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137], and cases there cited). Since that ruling, however, the Supreme Court has modified the prior rule

(Vesely

v.

Sager,

5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151]). Appellant argues that

Vesely

completely reverses the former rule, not only as it barred action against the liquor seller by a third party injured by the intoxicated purchaser, but also as

[591]

it applied the doctrine of contributory negligence to the drinker in an action by him or his heirs arising out of injuries he sustained when intoxicated. We cannot agree.