[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 94 Action for wrongful death by Marion Ibach, administratrix of the estate of Genevieve M. Callahan, deceased, against Harry Jackson. From a judgment for defendant, plaintiff appeals.
REVERSED. REHEARING DENIED. On December 1, 1932, plaintiff filed her complaint and on December 2, 1932, the summons was served upon defendant. It is alleged in the complaint that on or about July 28, 1931, Genevieve M. Callahan died in Multnomah county, Oregon, and thereafter plaintiff was appointed and ever since has been administratrix of her estate; and that deceased left as her next of kin and sole heir a daughter now about six years of age.
In paragraph III of said complaint, it is further alleged:
"On or about July 27, 1931, the defendant in Portland, Oregon, wrongfully and unlawfully gave and served the said Genevieve M. Callahan large quantities of intoxicating alcoholic liquors for beverage purposes, *Page 95 and induced her, the said Genevieve M. Callahan, to drink the same in large quantities sufficient to and which did cause her to become ill and to suffer from acute alcoholism, thereby causing her death on July 28, 1931, in Multnomah county, Oregon.
IV "That as a direct and approximate result of said wrongful and unlawful acts, the estate of the said Genevieve M. Callahan has suffered damages in the sum of $10,000."
On December 10, 1932, defendant filed an answer to said complaint.
On September 12, 1933, which it will be noted is more than nine months after the answer had been filed and more than two years after the alleged cause of action had accrued, defendant filed a motion for an order permitting and allowing him to withdraw his answer and file a demurrer.
On September 15, 1933, an order was made permitting the withdrawal of said answer and the filing of a demurrer to said complaint.
On September 18, 1933, a demurrer was filed based on the following grounds:
That the court has no jurisdiction of the subject of the action.
That the plaintiff has no legal capacity to sue.
That there is a defect of parties plaintiff.
That the complaint does not state facts sufficient to constitute a cause of action.
On October 9, 1933, said demurrer was sustained and plaintiff allowed five days thereafter within which to further plead.
On October 17, 1933, plaintiff filed an amended complaint containing the same allegations as those set forth in her original complaint except that paragraph *Page 96 III thereof was changed and paragraph IV was added, which said paragraphs III and IV of said amended complaint are as follows:
III "That on or about the 27th day of July, 1931, the defendant enticed the said Genevieve M. Callahan to his room in a hotel in Portland, Oregon; that he then and there wilfully, unlawfully, and wrongfully forced the said plaintiff's intestate to partake of intoxicating liquors to such an extent that she lost her sense of reason and volition and forced her to continue to partake of said intoxicating liquors until she reached the state of acute intoxication, well knowing that she was unable to withstand the use of intoxicating liquors, and while in a state of intoxication and unable to control her own action and movements and in a manner unknown to plaintiff but known to the defendant the said Genevieve M. Callahan, while so suffering from said acute alcoholism brought on by the wrongful acts of the defendant as hereinbefore set forth, sustained injuries to her right ear, left arm, left hand, left leg, and fractured both nasal bones in her nose, and thereafter, the defendant carelessly and negligently left the said Genevieve M. Callahan while she was in said condition in said hotel room alone, where she died sometime during the night, as a direct and proximate result thereof.
IV "That the death of said Genevieve M. Callahan was directly caused by said wrongful, wilful, unlawful, careless, and negligent acts of said defendant, to wit:
"(1) That the defendant wrongfully, wilfully, and unlawfully forced said Genevieve M. Callahan to drink intoxicating liquors and continue to do so after defendant well knew that she was unable to drink more without probable injury resulting to herself and well knew that the said Genevieve M. Callahan could not consume more without probable illness or injury resulting therefrom. *Page 97
"(2) That the defendant under the circumstances carelessly and negligently left the said Genevieve M. Callahan in said hotel room alone with the knowledge that she was intoxicated, ill and in a dangerous condition requiring care and attention.
"(3) That the said defendant carelessly and negligently failed to exercise the care necessary under the circumstances to protect the said Genevieve M. Callahan."
On October 21, 1933, defendant filed a motion to strike said amended complaint from the files on the ground that it contains more than one cause of action not separately stated, and that it attempts to set up a new and distinct cause of action from that alleged in the original complaint.
On said October 21, 1933, defendant also filed a demurrer to said amended complaint.
On November 4, 1933, said motion to strike plaintiff's amended complaint from the files was allowed.
On November 18, 1933, plaintiff having failed and refused to further plead, an order of dismissal and a judgment in favor of defendant for costs and disbursements were entered.
Error is assigned because of the orders sustaining the demurrer to the original complaint and the motion to strike the amended complaint.
There is no statute making it unlawful merely to give an adult a drink of intoxicating liquor. Section 15-105, Oregon Code 1930, by its terms, among other things, declares it to be unlawful to "sell, give away or barter any intoxicating liquor", etc. This has been held to refer to an ostensible gift which in fact is a sale, and not to the character of transaction set forth in the complaint: State v. Runyon, 62 Or. 246 (124 P. 259). *Page 98
There being no statute, making it an offense, and it being no offense under the common law, it becomes a question whether under the facts delineated in the amended complaint, wrongful acts by defendant have been presented upon which decedent, if living, could base an action for damages.
Where plaintiff, or plaintiff's decedent voluntarily participates in the wrongful act and by such participation contributes to the cause of the damage sustained, an action cannot be maintained.
The original complaint failed to state facts negating such participation by plaintiff's decedent with sufficient clarity, distinctness and particularly to withstand the strict construction which a demurrer invokes. While it would have sufficed after issue joined, we think no error was committed by the learned trial judge in sustaining the demurrer thereto and permitting plaintiff to file an amended complaint.
It is argued by defendant that plaintiff's original complaint was predicated upon some alleged violation of the liquor laws. While it is deducible therefrom that defendant violated the statute then in effect (Section 15-105, Oregon Code 1930), prohibiting possession of intoxicating liquor, that deduction also attends the amended complaint. In that respect, this case is to be distinguished from those cases where it is held that merely holding a bottle of liquor for the purpose only of taking a drink therefrom does not constitute unlawful possession: State v. Williams, 117 Or. 238 (243 P. 563); Statev. Fouts, 129 Or. 115 (276 P. 683).
In the case at bar, both complaints, one by direct reference, the other by obvious inference, disclose that defendant knowingly had large quantities of intoxicating liquor in his possession. In that way and to that extent only we concur with defendant in his construction *Page 99 of these pleadings to the effect that in part they are predicated upon the statute effective for the purposes of this case which prohibited the possession of liquor.
Defendant suggests that the statute just cited was repealed without a saving clause by chapter 1, Laws of 1933, and that any right of action thereon was thereby terminated and annulled. Section 14-1008, Oregon Code 1930, reads:
"14-1008. Saving clause — Acts amending or repealing criminal statutes. — In all cases hereafter occurring where a criminal statute or a part of a criminal statute shall be either amended or repealed, the criminal statute or the part of a criminal statute so amended or repealed shall be and remain in force for the purpose of authorizing the prosecution, indictment, trial, conviction and punishment of all persons who shall have violated such criminal statute or part of a criminal statute so amended or repealed prior to the taking effect of the act so amending or repealing such criminal statute or part of a criminal statute."
This section has the same effect as a saving clause in the repealing act.
Defendant also suggests that the original complaint discloses an attempt to base this action upon the provisions of section 15-708, Oregon Code 1930, which provides that:
"Any person who shall * * * give to any intoxicated person or habitual drunkard * * * intoxicating liquors shall be liable for all damages resulting * * * therefrom at the suit or action of the wife, husband, parent or child of such intoxicated person."
We think that this suggestion cannot be approved. The allegation as to the surviving daughter of decedent must be treated as mere surplusage. *Page 100
Whether the motion to strike plaintiff's amended complaint should have been sustained depends upon whether it set forth a new and different cause of action from that which is alleged in the original complaint, or contains two causes of action not separately stated.
We think that the amended complaint merely amplifies the allegation of the wrongful administration of liquor, more clearly states facts negating decedent's voluntary participation, adds one more specification of negligence, namely, leaving decedent alone in a maimed, injured and intoxicated condition: Hansen v.Oregon-Washington R. N. Co., 97 Or. 190, 216 (188 P. 963, 191 P. 655); Doyle v. Southern Pac. Co., 56 Or. 495, 521, 522 (108 P. 201); Osgood v. Osgood, 35 Or. 1, 6 (56 P. 1017). (SeeBramwell v. Rowland, 123 Or. 33, 40, 41, 42, 43 (261 P. 57), where Mr. Justice ROSSMAN discusses the propriety of permitting amendments during trial.)
The use of the word "forced" in describing the alleged administration of liquor does not change the character of the wrongful act alleged. One cause of action only is alleged.
These views lead us to the conclusion that error was committed in sustaining said motion to strike plaintiff's complaint.
This motion did not present the question of whether plaintiff's cause of action is barred by the statute of limitations nor the question of whether sufficient facts are stated in the amended complaint to constitute a cause of action. Those questions were presented by defendant's demurrer, but the trial court disposed of the case on the motion to strike only. While it is not important on this appeal, we venture to suggest that the demurrer to the amended complaint waived defects therein attackable only by motion: 49 C.J., 832, § 1230. *Page 101
In support of his demurrer, defendant invokes the principle that where the original complaint states no cause of action, the statute of limitations is not thereby tolled; and if an amended complaint is not filed within the period limited by the statute the cause of action is barred. This principle cannot be applied to a case such as the instant case where in the original complaint a cause of action is defectively stated: United Statesv. Memphis Cotton Oil Co., 288 U.S. 62 (53 S.Ct. 278,77 L.Ed. 619), and cases there cited. Speaking through Mr. Justice Cardozo, the United States supreme court there say:
"The general rule is said to be that an amendment of a pleading will take effect by relation and thus relieve against the bar of an intervening limitation if the identity of the cause of action is still substantially the same, but that the limitation will prevail if under the guise of an amendment there is the substitution of a new cause of action in place of another wholly different. Baltimore O.S.W.R. Co. v. Carroll, 280 U.S. 491,50 S.Ct. 182, 74 L.Ed. 566; Seaboard Air Line Ry. v. Renn,241 U.S. 290, 293, 36 S.Ct. 567, 60 L.Ed. 1006; Harriss v. Tams,258 N.Y. 229, 242, 179 N.E. 476. The analogy is helpful; yet it will confuse, instead of help, if we do not insist at the beginning upon a definition of our terms or at least a recognition of their shifting meanings. A `cause of action' may mean one thing for one purpose and something different for another. It may mean one thing when the question is whether it is good upon demurrer, and something different when there is a question of the amendment of a pleading or of the application of the principle of res judicata. Cf. Chicago, R.I. P. Ry. Co. v. Schendel,270 U.S. 611, 617, 46 S.Ct. 420, 70 L.Ed. 757, 53 A.L.R. 1265; Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321, 47 S.Ct. 600,71 L.Ed. 1069. At times and in certain contexts, it is identified with the infringement of a right or the violation of a duty. At other times and in other contexts, it is a concept of *Page 102 the law of remedies, the identity of the cause being then dependent on that of the form of action or the writ. Another aspect reveals it as something separate from writs and remedies, the group of operative facts out of which a grievance has developed. This court has not committed itself to the view that the phrase is susceptible of any single definition that will be independent of the context or of the relation to be governed. None the less, it has fixed the limits of amendment with increasing liberality. A change of the legal theory of the action, `a departure from law to law', has at times been offered as a test. Union Pacific Ry. Co. v. Wyler, 158 U.S. 285, 295,15 S.Ct. 877, 881, 39 L.Ed. 983. Later decisions have made it clear that this test is no longer accepted as one of general validity. Thus in Missouri, Kansas Texas Ry. Co. v. Wulf, 226 U.S. 570,33 S.Ct. 135, 57 L.Ed. 355, Ann.Cas. 1914B, 134, plaintiff suing in her individual capacity under a Kansas statute for her son's death was allowed to amend to sue as administratrix under the Federal Employers' Liability Act (45 USCA, §§ 51-59), after the statute of limitations would have barred another action. In New York Central Railroad Co. v. Kinney, 260 U.S. 340, 43 S.Ct. 122,67 L.Ed. 294, there was in substance the same ruling. In Friederichsen v. Renard, 247 U.S. 207, 38 S.Ct. 450,62 L.Ed. 1075, a cause of action by a defrauded buyer to set aside a contract was turned into a cause of action to recover damages for deceit. `Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied'. New York Central Railroad Co. v. Kinney, supra, page 346 of 260 U.S. 43 S.Ct. 122, 123."
Independently of any statute, it is wrongful for any person repeatedly and continuously to ply another person with intoxicating liquor until intoxication is *Page 103 produced. An action by a woman so mistreated could be maintained unless by voluntary participation therein she could herself be said to be at fault. It is alleged in the amended complaint, as it may be inferred from the original complaint, that after decedent lost her sense of reason and volition, defendant continued to administer liquor to her. If decedent had survived such an indignity, she would have had a right of action against defendant for such damages as she sustained thereby.
In discussing the case wherein the defendants had induced plaintiff's decedent to swallow three pints of whiskey in quick succession, the supreme court of Texas, speaking through Mr. Chief Justice Willie, say:
"As a general principle, a man can recover no damages for an injury received at the hands of another, with his own consent, unless it arises from some act which is in itself a breach of the peace. For instance, it is said by Mr. Cooley, that `a man cannot complain of a nuisance, the creation of which he concurred in or countenanced'. But if two men agree to fight and one is injured, the law will not excuse on account of the consent given to the assault. And `an injury even in sport would be an assault, if it went beyond what was admissible in sports of the sort, and was intentional'. Cooley on Torts, p. 163; Adams v. Waggoner,33 Ind. 531; Com. v. Colberg, 119 Mass. 350. Much less can a man consent to the taking of his own life, or to an injury which is likely to result in his own death.
"But even in cases where no breach of the peace is involved, and the act to which consent is given is matter of indifference to public order, the maxim of volenti non fit injuria presupposes that the party is capable of giving assent to his own injury. If he is divested of the power of refusal by reason of total or partial want of mental faculties, the damage cannot be excused on the ground of consent given. A consent *Page 104 given by a person in such condition is equivalent to no consent at all — more especially when his state of mind is well known to the party doing him the injury. If an infant of tender years, or an idiot, or a person non compos mentis, from any cause agrees to an act which he cannot know will injure him, the person causing him to perform, or suffer the performance of, such act will be answerable for its consequences. It is just as if a person, without knowledge that a poisonous or deleterious substance is contained in an article of food offered him, swallows it at the solicitation of another, who is aware of its noxious character — in such case of course the one who gives the food is liable in damages for the injury that follows: Com. v. Stratton,114 Mass. 303.
"And so if one whose mental faculties are suspended by intoxication is induced to swallow spirituous liquors to such excess as to endanger his life, the persons taking advantage of his condition of helplessness and mental darkness and imposing the draught upon him must answer in damages for the injury that ensues. They must answer to him if such injury should fall short of the destruction of life; and to his family if death should be the result." McCue v. Klein, 60 Texas 168 [60 Tex. 168] [60 Tex. 168] [60 Tex. 168] (48 Am.Rep. 260).
Holding that a statute, which declares that a person injured * * * in consequence of intoxication of any person has a right of action does not give a cause of action to the intoxicated person, the superior court of New Hampshire, speaking through Mr. Chief Justice Peaslee, say:
"It is further urged that, independent of any statute, the defendant is liable for illegally furnishing intoxicating liquor, whereby damage was caused to the receiver thereof. The argument is that the wrongful nature of the defendant's act, as against the public, makes him also a wrongdoer as to a private party affected by such conduct. Assuming that this is true, and that the case cannot be distinguished from those *Page 105 where the criminal liability is manifestly imposed for the benefit of a private party to be affected, as in the case of the law of the road (P.S.C. 76, s. 17; Brember v. Jones,67 N.H. 374), still the plaintiff cannot recover when it appears that the conduct of a reasonable man, in the place of the decedent, would have avoided the wrong done. Bresnehan v. Gove, 71 N.H. 236; Brember v. Jones, supra; Taylor v. Thomas, 77 N.H. 410.
"It must be inferred from the nature of the transactions involved that Landon not only did nothing to avoid the defendant's illegal act, but that he was a well-wisher to the deed. He was a participant in the transaction, and his cooperating acceptance was necessary to complete the illegal gift. Argument is advanced from the standpoint that an inebriate is incapable of resistance. If such fact were proved, if it appeared that Landon was in a condition not to be responsible for his acts when he accepted the liquor, the argument would be applicable." Hoyt v. Tilton, 81 N.H. 477, (128 A. 688).
"When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission." Section 5-703, Oregon Code 1930.
It is alleged in the amended complaint that defendant's wrongful acts caused decedent's death; but it is not alleged that the administration of the liquor after decedent had lost her sense of reason and volition, namely, the administration of the intoxicant in which decedent could not have voluntarily and willingly participated, was the proximate cause of decedent's death. It is alleged that the abandonment of decedent, by defendant after having voluntarily assumed the duty of exercising ordinary care for her welfare and safety inducing her to become his guest was the proximate *Page 106 cause of decedent's death. The demurrer to the amended complaint should be overruled.
For the reasons stated, the judgment of the circuit court is reversed and this cause remanded for such further proceedings as may be proper not inconsistent herewith.
RAND, C.J., and BELT and ROSSMAN, JJ., concur.
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