Petition for rehearing denied September 11, 1934 ON PETITION FOR REHEARING In a petition for rehearing defendant again urges that plaintiff's original complaint fails to state a cause of action, insists that an inference from the language of the complaint, that after decedent lost her sense of reason and volition defendant continued to administer liquor to her, is unwarranted, contends that this court erred in holding that the circuit court committed error in sustaining defendant's motion to strike the amended complaint from the files, argues that this court erred in holding that the amended complaint takes effect by relation thus relieving against the bar of an intervening limitation, and suggests this court erred in holding that the demurrer to the amended complaint should be overruled.
The following authorities, not cited in defendant's original brief, are cited in the petition before us: Hall v. L. N. Ry.Co., 157 Fed. 464; St. Louis S.F.R. Co. v. Loughmiller, 193 Fed. 689; Delaware Hudson Co. v. Jennings, 64 F.2d 531; and Noland v. Union State Bank, 139 Kan. 261 (31 P.2d 45).
The following authorities, which are cited in defendant's original brief, are again cited in said petition: 49 C.J. 503; 17 C.J. 1298; Montgomery v. Shaver, *Page 107 40 Or. 244 (66 P. 923); Foste v. Standard Ins. Co., 26 Or. 449 (38 P. 617); Foster v. St. Luke's Hospital, 191 Ill. 94 (60 N.E. 803); Elrod v. St. Louis, 84 Kan. 444 (113 P. 1046);Kramer v. Gille, 140 Fed. 682; Tiller v. St. Louis S.F.R.Co., 189 Fed. 994; Hill Co. v. Hoover, 211 Fed. 241; UnionPac. Ry. Co. v. Wyler, 158 U.S. 285 (15 S. Ct. 877,39 L. Ed. 983); Seaboard Air Line Ry. v. Renn, 241 U.S. 290 (36 S. Ct. 567, 60 L. Ed. 1006).
Bouvier's dictionary tells us that the condition of a person whose mind is affected by the immediate use of intoxicating drinks, which condition is known to the medical profession as drunkenness, presents various degrees of intensity ranging from simple exhilaration to a state of utter unconsciousness and insensibility. From the same source, we learn that in the popular phrase the term drunkenness is applied only to those degrees of it in which the mind is manifestly disturbed in its operation. In the earlier stages, it frequently happens that the mind is not only not disturbed but acts with extraordinary clearness, promptitude and vigor. In the latter, the thoughts obviously succeed one another without much relevance or coherence, the perceptive faculties are active, but the impressions are misconceived as if they passed through a distorting medium, and the reflective powers cease to act with any degree of efficiency. Some of the intermediate stages may be easily recognized; but it is not always possible to fix upon the exact moment when they succeed one another. In some persons peculiarly constituted, a fit of intoxication presents few if any of these successive stages, and the mind rapidly loses its self-control, and for the time is actually frenzied, as if in maniacal paroxysm though the amount of the drink may be comparatively small. *Page 108
Volume I, Bouviers' Law Dictionary (Rawle's Revision), subject, "Drunkenness", p. 619.
Whether plaintiff's decedent belonged to the class of persons who, in their consumption of liquor, undergo intoxication in varying degrees of intensity, or was one of those persons who rapidly lose their self-control, certainly a time came before she died when decedent did lose control of her will power.
To support the demurrer to the original complaint, it is necessary to infer that all of the large quantities of liquor alleged to have been given decedent by defendant was administeredbefore decedent lost her sense of reason and volition.
Under the strict rule applicable in determining the sufficiency of a pleading when tested by a demurrer, we think that such an inference should be drawn. Under the more liberal rule which obtains after issue joined upon the facts, it is clearly inferable from the language of the complaint quoted in the original opinion herein that part of the liquor was given decedent before and part of it after she had passed the crucial period of transition from conscious volition to irresponsible intoxication.
We venture to assert that the inference favorable to defendant is no less an inference than the one favorable to plaintiff. There is no direct allegation in the complaint that all of the liquor alleged to have been given decedent was administeredbefore her mental processes became disturbed by intoxication; but the strict rule requires us to so infer. There is no direct allegation that part of the liquor was administered after decedent lost control of herself; but the liberal rule permits us to so infer.
Defendant states that he finds no precedent cited in the opinion to the effect that a cause of action was *Page 109 stated in plaintiff's original complaint. We again commend to defendant the case of McCue v. Klein, 60 Tex. 168 (48 Am. Rep. 260). As quoted in the original opinion, it is there stated:
"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."
We stated in the original opinion and will restate here that on December 10, 1932, defendant filed an answer to said complaint. That answer remained on file for nine months. During all that time issue was joined upon the facts and the liberal rule of construction only could be invoked in testing the sufficiency of the complaint. Defendant therefore affords us a precedent for concluding that under such liberal rule the complaint would be upheld. At least, it is evident that defendant was unwilling to submit the question when the record required a liberal construction of the complaint, because defendant, after waiting nine months, and until the expiration of the period prescribed by statute for instituting such action as this, procured an order permitting him to withdraw his answer and file a demurrer to the complaint, thereby rendering the strict rule of construction available to him.
Defendant complains that he is being deprived of the right to plead the defense of the statute of limitation. He seems to be unmindful that the record discloses that he waited until after the expiration of the statutory period within which actions of this kind *Page 110 may be prosecuted before securing an order the effect of which was to change the rule of construction from liberality to strictness thereby rendering plaintiff's complaint valueless, although for nine months the cause had been at issue and the complaint invulnerable. The mandate of simple justice prevents the opening of a case in such a way to permit the interposition of that defense.
Defendant again urges error on the part of this court in holding that the trial court erred in sustaining defendant's motion to strike plaintiff's amended complaint from the files. There were but two grounds assigned in support of this motion: (1) That the amended complaint contains more than one cause of action, and (2) that it attempts to set up a new and distinct cause of action. The right of a plaintiff, when filing an amended complaint, to plead an additional specification of negligence is conceded.
The case is one based upon the alleged causing of death by wrongful act. Despite defendant's statement to the contrary, we so designated it in the original opinion and venture to reiterate it here. Any negligent act or acts of defendant connected with and comprising part of the gravamen of plaintiff's complaint which caused the death of decedent could be incorporated in the amended complaint. It is alleged in the amended complaint that defendant's abandonment of decedent, while decedent was in a state of acute alcoholism brought on by the wrongful acts of defendant, was the proximate cause of her death. It is alleged in the original complaint that defendant gave decedent intoxicating liquor in such large quantities as to cause acute alcoholism. Certainly that brings that particular specification of negligence under the conceded rule above stated; and dissipates the suggestion that in *Page 111 that respect a new and distinct cause of action is set forth in the amended complaint.
One definition of negligence is a violation or breach of a duty owing by one person to another. The administration by one person to another of alcoholic liquor for beverage purposes only, in such quantities as to cause death is a breach of duty and a tortious act, the abandonment of a guest who had been maimed and injured after having been made helplessly drunken by her host is another breach of duty. We venture to suggest to defendant that these are elementary principles upon which it is unnecessary to cite precedents, and, further, that it is the function of the court to declare the law not to show litigants where to find it.
In this jurisdiction, the common law forms of action are not retained: Section 1-101, Oregon Code 1930. Here we may properly designate this as an action for damages for wrongful death.
Whether constructive force or actual force, or no force at all was employed, the violation of duty is shown by the facts alleged, both in the original and in the amended complaint. There is nothing in either complaint inconsistent with the rules governing an action of trespass on the case.
"As a general rule an action on the case will lie where the injury is the effect of the defendant's negligence or mere non-feasance, although the force used be immediate or direct." 26 R.C.L. 983-4, Subject, Trespass on the Case.
The matter of forcible conduct on defendant's part is not determinative of whether a different cause of action is stated in the amended complaint from that which is stated in the original complaint. The test is whether negligence on defendant's part has been pleaded in both complaints. *Page 112
To say that the administration of liquor in such large quantities as to cause death is not a breach of the duty which one human being owes to every other human being with whom he comes in contact, namely, the duty to observe ordinary care to prevent injury, is to shock the fundamental and rudimentary principles of decency and order. For this reason we hold that a breach of duty was so pleaded in the original complaint. The same breach of duty is alleged in the amended complaint. We do not recede from our holding, however, that from the original complaint by applying a strict rule of construction, the inference that decedent, herself, was also guilty of negligence, could be drawn. That inference does not change the character or form of plaintiff's remedy nor affect the principles and rules governing her rights in relation to her amended complaint.
Defendant also urges that this court erred in holding that the demurrer to the amended complaint should be overruled. Defendant volunteers the statement that this question was not before the court. To this point, we quote from pages 8 and 9 of defendant's original brief:
"However, the question of what statute is involved is of little importance, as the underlying question on this appeal is simply this: Does the `amended' complaint set out an entirely new and distinct cause of action from that set out in the original complaint, and if so, is it barred by the statute oflimitations? The answer must be in the affirmative."
On page 19 of defendant's original brief herein, we find the following statement printed in full capitals:
"The amended complaint sets up a new and entirely different cause of action which is barred by the statute of limitation." *Page 113
Pages 19 to 29, both inclusive, of said brief are devoted to a citation of authorities and argument upon that point. When it is remembered that the only means by which the question of the statute of limitation could be brought to the attention of the court is through the office of the demurrer to the amended complaint, it must be apparent that defendant is verging on inconsistency in making the statement that said demurrer was not before the court.
It is true that the trial court did not pass upon that demurrer. We felt, however, that there could be no impropriety in indicating our views thereupon after such a thorough briefing and argument thereof by defendant. We called attention to the failure of plaintiff to allege that the administration of intoxicating liquor was the proximate cause of the death of decedent. We note that defendant says that no question was raised as to the sufficiency of the amended complaint to state a cause of action. As stated in the demurrer, the fifth ground upon which it is based, is as follows: "That the amended complaint does not state facts sufficient to constitute a cause of action." In the orderly procedure which the learned and experienced trial judge will follow, this demurrer will be considered and the questions raised thereby will be decided. That necessarily will require the court to determine whether a cause of action is stated in the amended complaint with sufficient certainty, definiteness and exactitude to withstand attack by demurrer. While we think that the amended complaint is not vulnerable to demurrer, it would not be an abuse of discretion to permit an amendment thereof with reference to proximate cause.
Defendant indicates that the texts and decisions cited by him in his original brief were ignored by this *Page 114 court. In that he is mistaken. Every text and every decision cited were carefully read and considered. Those again cited in defendant's petition for rehearing have again been read. Those cited in the petition and not cited in the original brief have been carefully read and considered.
We are reluctant to comment upon these authorities because, by doing so, we extend this opinion to the point of prolixity; and, yet, defendant is entitled to know that we have given to his cause and to his presentation thereof the best thought and the most conscientious consideration of which we are capable.
The two citations to Corpus Juris refer to two sections thereof in which general statements are grouped. One of those general statements found on page 503 of Vol. 49 is as follows:
"Where, however, a cause of action is defectively or insufficiently stated, an amendment to perfect the statement is permissible."
Another of those general statements appears at the beginning of section 157 on page 1297 of Volume 17 C.J. Defendant cites page 1298 upon which the remaining portion of said section is found. We quote the statement at the beginning of said section:
"Where the declaration or complaint states a good cause of action, an amendment which does not set up a new cause of action but makes the pleadings conform to the evidence, or which cures a formal defect, may properly be allowed and such amendment relates back to the commencement of the action and may be made even after the limitation period has expired."
The principle is also announced that it is error to permit an amendment which sets up a new cause of action.
Montgomery v. Shaver, 40 Or. 244 (66 P. 923), holds that in an injunction suit to restrain defendant *Page 115 from occupying certain premises, where the complaint is amended to include a larger tract, the suit will be deemed to have been commenced on the day of the amendment in determining whether defendant had acquired title by adverse possession to the portion of the tract not included in the original complaint.
Foste v. Standard Insurance Co., 26 Or. 449 (38 P. 617), holds that a complaint stating a cause of action for labor and services cannot be amended on trial so as to set up a cause for a stated account. The rule is stricter with regard to allowable amendments where a cause is on trial after issue joined than before trial.
Foster v. St. Luke's Hospital, 191 Ill. 94 (60 N.E. 803), announces the doctrine that where the original declaration fails to state a cause of action, an amended declaration does not relate back and hence the statute of limitations is a bar.
Elrod v. St. Louis S.F.R. Co., 84 Kan. 444 (113 P. 1046), holds that an amendment adding to the complaint an allegation that defendant, railroad company, was negligent in failing to light its depot platform, did not relate back to the original complaint, and hence as to that specification of negligence the statute of limitations was a bar.
Kramer v. Gille, 140 Fed. 682, holds that where the original petition filed in a state court by the receiver of a corporation alleged that defendants, who were stockholders and directors of the corporation at a time when it was insolvent, sold their stock to it at par value for cash in fraud of its creditors and sought to recover the sum so received by defendants, an amendment was not allowable after removal of the cause to the federal court alleging that defendants exchanged their stock for a stock of goods of a stated value, which *Page 116 was owned by the corporation, but stood in the name of another.
The doctrine of Hall v. Louisville N.R. Co., 157 Fed. 464, is that an amendment of a declaration changing the beneficiary of the action is in effect the bringing of a new suit.
Tiller v. St. Louis S.F.R. Co., 189 Fed. 994, holds that where an original petition filed by a husband for injuries to his wife by fire alleged to have been set out by defendant railroad company approaching their dwelling charged mere mental suffering dissociated from physical injury due to the fire, and therefore failed to state a cause of action, it could not be amended after limitations had run by inserting an allegation of physical injury due to the fire.
St. Louis S.F.R. Co. v. Loughmiller, 193 Fed. 689, holds that where an action is based on a statute of a sister jurisdiction and no reference whatever is made in the petition to the statute or any claim based thereon until the time limit prescribed in the statute has expired all right of action thereunder is lost and any amendment thereafter attempted is as inefficient to restore or revive the lost cause of action as would be a new action then instituted
Hills Co. v. Hoover et al., 211 Fed. 241, announces the rule that where a second cause of action was added by amendment, the statute of limitation was not tolled against such second cause of action by the pendency of a suit on the first.
Union Pac. Ry. Co. v. Wyler, 158 U.S. 285 (15 S. Ct. 877,39 L. Ed. 983), holds that a second amended petition changing the ground of action from the general law to a special statute did not relate back to the commencement of the action. *Page 117
We quote the second paragraph of the syllabus in Seaboard AirLine Railway v. Renn, 241 U.S. 290 (36 S. Ct. 567,60 L. Ed. 1006):
"Allegations in the complaint in a suit in a North Carolina Court by a railway employee to recover for personal injuries suffered through the railway company's negligence, that the railway company was operating a railway in Virginia, North Carolina, and elsewhere, that plaintiff was in its employ, and that, when injured, he was in the line of duty, and that the injury occurred in Virginia by reason of a defect in the right of way, point, although imperfectly, to a cause of action under the Federal Employers' Liability Act of April 22, 1908, (35 Stat. at L. 65, Chap. 149, Comp. Stat. 1913, Sec. 8657), so that an amendment stating distinctly that, at the time of the injury, defendant was engaged and plaintiff employed in interstate commerce, did not introduce a new cause of action which would be barred, because the two years' limitation prescribed by section 6 had then elapsed, but such amendment merely expanded or amplified what was alleged in support of the cause of action, and related back to the commencement of the suit."
Delaware Hudson Co. v. Jennings et al., 64 F.2d 531, holds that a second amended statement of claim, which alleged that a boy was injured by a train at a public crossing, alleged a different cause of action than that alleged in the first amended statement which alleged that the accident occurred at a point opposite the postoffice which was about 500 feet from the crossing. The court there note that at the point mentioned in the first amended statement, the boy would have been a trespasser who could recover only for wanton or wilful injury while at the crossing he would have been a wayfarer to whom defendant would owe a higher degree of care.
Noland v. Union State Bank, 139 Kan. 261 (31 P.2d 45), holds that where in the original pleading it *Page 118 was alleged that checks drawn by plaintiff upon funds deposited in defendant's bank by plaintiff were dishonored by defendant causing plaintiff to be arrested, and this pleading was amended by alleging that the dishonored checks were drawn by a partnership of which plaintiff was a member upon funds in said bank belonging to said partnership does not relate back to the commencement of the action.
We quote from the opinion in that case:
"It is shown that the amendment set up a different tort than was first pleaded. It substituted one negligent charge for another and was based on different parties with different ground of recovery, and where that appears it is open to the defense of the statute of limitations, * * *"
The case of Elrod v. St. Louis S.F.R. Co., supra, support defendant's position with reference to the part of plaintiff's amended complaint charging abandonment of decedent by defendant, but we are unwilling to be controlled by it because it is in conflict with the Oregon cases cited in the original opinion.
The other cases, except one, are not in point. They fall into three classes, one, those cases affecting title to real property, two, those cases wherein no cause of action is stated in the original pleadings, and three, those cases wherein the amended pleading introduces or substitutes a new and different cause of action from the one set forth in the original pleading.
The exception above noted is the case of Seaboard Air LineRailway v. Renn, supra, which announces and applies the rule announced herein by this court.
We adhere to the original opinion.
The petition for rehearing is denied, the judgment of the circuit court reversed and the cause remanded. *Page 119