(dissenting) — The majority concludes that a cause of action such as plaintiff’s was unknown to the common law, that consequently a common law action cannot be entertained by the courts today, and that the repeal of the Dramshop Act has destroyed plaintiff’s right of action. I cannot agree. The first conclusion is correct as a matter of historical interest. However, the freeway, the high-compression gasoline engine, and the high-speed automobile were also unknown to the common law. So were the social dangers resulting from the lackadaisical mixture of alcohol and gasoline. Times change, and the common law changes with the times — slowly, perhaps, but quite surely — as historical perspective clearly demonstrates. See K. Llewellyn, The Common Law Tradition (1960).
The remedy of the Dramshop Act was extended to persons injured by “any intoxicated person, or in conse*766quence of the intoxication, habitual or otherwise, of any person . . .” RCW 4.24.100 (repealed Laws of 1955, ch. 372, § 1). Plaintiff seeks to establish liability upon the ground of injury flowing from the giving of drinks in an excessive amount to a known alcoholic at an office party. The most cursory reading of the repealed statute establishes that the liability which it created was so much broader and more inclusive than that contended for by the plaintiff that no conclusion whatever in relation to the instant case should be drawn from the repeal of the Dram-shop Act.
Hansen v. West Coast Wholesale Drug Co., 47 Wn.2d 825, 289 P.2d 718 (1955), does not indicate that the plaintiff made allegations of alcoholism or previous knowledge of a revocation of driver’s license. It may be cited as judicial recognition of the proposition that the statutory right of action was retrospectively abolished; it is not authority for the proposition that the legislature by repealing the statute sought to destroy any previously existing or inchoate common law right of action.
It is also impossible to state with certainty that the liability accruing under RCW 71.08.080 was in any sense intended as a substitute for the Dramshop Act. When the legislature seeks to destroy a common law right of action, it generally does so explicitly. See, e.g., RCW 51.04.010. In my opinion, the majority has drawn extremely dubious conclusions as to public policy from a most insubstantial legislative history.
The remedy to which the majority would restrict the plaintiff is RCW 71.08.080 — which dates from the territorial period. A catalogue of the major achievements in reconciliation of the common law to changed social conditions since statehood would be a futile exercise; but the common law is not an unchanging compendium of desiccated maxims. Nor is the field of tort law one in which the courts should always defer to the legislature. See Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265 (1963).
Even the majority’s assertion that at common law there *767was no right of action for supplying alcohol to a person under the circumstances of this case is not strictly accurate. First, there were no automobiles “at common law” capable of transformation by an inebriate from a useful mechanism into an engine of violence and destruction. More importantly, the common law recognized a right of recovery for the provision of habit-forming drugs to a known user. Such sales were the basis of actions for the loss of services, support, and consortium. See Annot., 130 A.L.R. 352 (1941). The sale of liquor to an alcoholic has been, at common law, held within the rationale of the habit-forming drug cases. Id., at 357-59. An action for the wrongful death of a slave through provision of alcohol — injury to property — has been sustained at common law. Id., at 366. Actions by third parties for personal injuries so occasioned have also been sustained at common law. Id., at 367.
It is correct that most courts, at common law, confronted with a third party suit for personal injuries flowing from provision of alcohol to able-bodied men in the days prior to the modern automobile, held that the provision of alcohol was not the proximate cause of injury. Such reasoning is far more persuasive when a drunkard is annoying or assaulting a passerby, riding a horse, or driving his carriage through the village street at the breathtaking speed of 10 to 15 miles per hour, than when an inebriate is in incompetent control of a 2-ton metal juggernaut powered by three hundred horsepower.
Adaptation of the law of torts to the myriad risk-creating agencies and devices of modern society requires continuous application of easily understood basic principles to a plethora of divergent and continually emerging factual combinations. The task is singularly suited to the judicial process and in the grand tradition of the common law. See Llewellyn, supra. The resolution of the problems involved would be a task requiring impracticable prodigies of legislative effort. Furthermore, it is almost a rule-of-thumb — worthy of judicial notice — that the legislative branch usually reacts only to organized vocal public interest. There is no such *768organized vocal interest or effort on the part of the socially significant number of miscellaneous persons injured today through the drunkenness of a socially significant number of motor vehicle operators.
I must say that judicial cognizance of, and functioning within, the great common law tradition can hardly be characterized as judicial legislation except through naivete as to legal history. If each change in society occasioned by technological and other developments involving potential negligent harm to individuals requires legislation before tort liability results, justice Would have been and would continue to be unnecessarily illusory in too many instances.
Legislation is not required and never has been. The instant case is one peculiarly suited to the judicial process. The ever-growing carnage on our highways is notorious. So is the relation between drunken driving and accidents. Plaintiff has alleged a clear and compelling factual case for foreseeable negligent harm, and this lawsuit is in that posture where inferences drawn from the allegations must be those most favorable to the plaintiff.
It requires no legislative fact-finding to establish that risk-creating conduct existed on the facts alleged. Legislative inaction is not proof of inexorable social or public policy. That the legislature has not forbidden provision of alcohol for business purposes to known alcoholics who may reasonably be expected to leave the scene in their personal automobiles is not a barrier to judicial determination of liability. If that determination is consistent with the analytic framework of the law of torts, it is legitimate and should be effectuated modernly in this appellate court.
Such a judicial determination is by no means unprecedented. A common law action for provision of alcohol has been held to exist for sale to a visibly intoxicated person, and resultant personal injury. See Annot. 75 A.L.R.2d 833 (1961). It would appear that in this, as in many areas, the common law is in the process of reconciling itself through judicial reasoning to our modern society.
*769The general rationale of those cases holding that the sale or furnishing of liquor to an able-bodied man does not produce liability in tort for resulting injury is that the furnishing of liquor is not the proximate cause of the injury. Translating that archaic analysis into the tort theory presently applied in this court, see, e.g., Rikstad v. Holmberg, 76 Wn.2d 265, 456 P.2d 355 (1969), the court should inquire if the risk created by the act of provision of liquor to a known alcoholic whose driver’s license has been previously revoked, at an office party at which he could reasonably be believed to have arrived by use of his personal auto, and from which he could be reasonably expected to depart in the same manner, creates an unreasonable risk of harm to persons rightfully abroad on the public highway. If reasonable men could differ as to the result of the query, a jury question of negligence is presented in the absence of countervailing social policy.
It is this analysis, and not the examination of dicta going to a result not reached by the court, which should be applied to the instant facts. Rappoport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821 (1959), from which such dicta are quoted at length by the majority, holds on common law principles that sale of drink to a minor by a tavern owner creates a foreseeable risk of harm to persons on the public highways. The decision considers that the sale of drink to minors is prohibited for the protection of the general public, and that the legislature has by its prohibition of sale to minors, recognized that minors are a class unfit to responsibly handle alcoholic beverages.
A legislative determination that a class of persons is unfit to responsibly handle alcoholic beverages is, of course, entitled to the respect due the acts of the legislature, and to be viewed under the rules governing review of the exercise of the police power. But it does not follow from the power of the legislature to define classes of persons who are denied access to alcohol, or as to whom certain consequences will follow from a provision of alcohol, see RCW 71.08.080, that *770the courts are foreclosed from an exercise of their own responsibility for the maintenance of tort law.
The substance of the issue before this court is whether the common law right of action for negligence should be abridged by a judicially created barrier to recovery. It should be clear to any responsible citizen that automobile accidents of the sort upon which this suit is brought are the foreseeable result of furnishing drink to alcoholic drivers, if not perhaps the foreseeable result of furnishing excessive drink to anyone driving a high-powered modern automobile on a public thoroughfare. The majority’s denial of liability is based on its own reasoning as to social policy, which I believe is unnecessarily limited.
There are three factors upon which a limiting social policy could reasonably be founded. One is that there was no sale in this case; a second is that this case does not involve a licensee of the liquor control board; the third is that there should be no liability for the furnishing of alcoholic beverages to even such persons as this defendant in a purely social context.
The first factor I do not find convincing. Suppose that A buys B’s drink at the cocktail lounge. Does this, should this, insulate the owner from liability if B is obviously roaring drunk when he leaves? Cf. RCW 66.44.230; WAC 314-16-150 (forbidding retail liquor licensees to “give or supply” liquor to intoxicated persons).
A second factor for consideration is whether the case involves a retail licensee of the liquor control board. At first blush this is an attractive distinction. Those who are licensed to sell at retail extract a profit from their sales— surely they can be required to bear the cost of the trade in mangled bodies. They hold a valuable privilege; regulation of their conduct is detailed; and the state interest is obvious. But, it is not only the retail licensee who reaps benefit from a furnishing of alcohol. We must ignore the realities of life in the twentieth century if we assume that *771business benefit is somehow coextensive only with sale for profit.
The business-firm defendant in this lawsuit had for three years deducted the costs of these Christmas parties — these “social” events — as a business expense for federal tax purposes. That action only confirms what it is obviously within the province of the jury to find — namely that the firm considered the Christmas party as a source of employee goodwill and hence that the party was held for a business purpose.
The third factor is more persuasive. A business may, if it considers the provision of alcohol for business purposes essential to its operations, insure itself and spread the risk of its conduct. An individual is both less likely to be aware of the possible liability and unable to pass the cost along as part of the overhead to the ultimate consumer. The business reality of. such provision of alcohol is recognized in article 8, section 8 of the state constitution, adopted in 1966 as the 45th amendment, and permitting promotional hosting by port districts as a public use for a public purpose. Such expenditures are also recognized as legitimate business deductions in the internal revenue code.
If the third factor is relevant, then there should be no liability if this was a genuine social gathering, but liability should attach if the so-called social gathering in the instant case was for a business purpose. The food and drink in the instant case were furnished by the employers; the party was held upon their premises. Attendance was not required of employees, but it seems a warranted inference from the facts alleged that the employers could expect rewards in good will and employee relations from the party. Accordingly, I believe that a question of fact was presented on this issue.
If the plaintiff can establish the fact issues relative to alcoholism and business purpose, I am of the opinion that he has a good common law action for negligent conduct on the part of the employers. He is entitled to attempt to make *772his proof. I must therefore dissent from the majority’s attempt to close the doors of justice.
Hill, Rosellini, and Hamilton, JJ., concur with Finley, J.
December 8, 1969. Petition for rehearing denied.