Summary of Opinion: Antonio Barboza v. William Decas

Factual and Procedural Background

This is an action in tort brought by the plaintiff to recover damages alleged to have been sustained because the defendant sold intoxicating liquor to the plaintiff's minor son. The son, between seventeen and eighteen years of age, purchased a quart of wine at the defendant's store in the evening of March 26, 1938, drank most of it, was removed from a theatre for disorderly conduct, returned to the defendant's store and purchased whiskey which he drank, and later was arrested at about midnight for an assault with intent to commit rape. He pleaded guilty in the Superior Court and was sentenced to State Prison. The son lived with the plaintiff and contributed part of his earnings to him.

The writ was dated July 21, 1938. The action was tried before Brogna, J., who ordered a verdict for the defendant on each count of the declaration. The plaintiff excepted to the ruling directing a verdict for the defendant.

Legal Issues Presented

Whether a violation of G.L. c. 138, § 34 (as amended by St. 1937, c. 424, § 5) by the sale of alcoholic liquor to a minor, standing alone, creates a civil cause of action in favor of a person allegedly damaged thereby.
Whether the defendant's alleged negligence in selling liquor to the plaintiff's minor son was a proximate cause of the plaintiff's alleged consequential damages (expense of defending the son and loss of his services) arising from the son's commission of a crime while intoxicated.

Arguments of the Parties

Plaintiff's Arguments

First count: The sale of intoxicating liquor to the minor was in violation of the General Laws of the Commonwealth (G.L. c. 138, § 34 as amended), and by reason of the minor's resulting intoxication the plaintiff was injured in person, property and means of support — a statutory basis for recovery.
Second count: The defendant was negligent in selling liquor to the plaintiff's minor son, and that negligence resulted in disgrace and shame to the plaintiff, expenditures for the son's defense, and the son's imprisonment with loss of his services — a common law basis for consequential damages.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wilson v. Head, 184 Mass. 515	Authority concerning a statutory cause of action under a prior civil damages statute (G.L. c. 138, § 49)	Cited to support the point that the statutory cause of action under § 49 was not available after repeal.
Wrentham v. Fales, 185 Mass. 539	Authority concerning a statutory cause of action under a prior civil damages statute (G.L. c. 138, § 49)	Cited to support the point that the statutory cause of action under § 49 was not available after repeal.
Mayor Aldermen of Taunton, petitioners, 290 Mass. 118	Authority concerning availability of the statutory remedy formerly provided by § 49	Cited to support that the statutory cause of action was not available after the statutory changes.
Pittsley v. David, 298 Mass. 552	Authority concerning the statutory civil remedy under the prior statute	Cited to support that the prior statutory cause of action was no longer available.
Palmigiani v. D'Argenio, 234 Mass. 434	Principle that violation of a penal statute does not necessarily create a civil cause of action	Cited in support of the conclusion that a mere violation of G.L. c. 138, § 34 does not by itself give rise to civil damages.
Richardson v. Whittier, 265 Mass. 478	Principle limiting civil liability arising from statutory violations	Cited to support that statutory violation alone does not create a civil remedy absent legislative intent.
Garland v. Stetson, 292 Mass. 95	Statutory construction and limits on civil remedies derived from penal statutes	Cited to support the court's conclusion about the absence of a civil cause of action from § 34 violation alone.
Wynn v. Sullivan, 294 Mass. 562	Limitations on civil liability for statutory violations	Cited to support that violation of the statute does not, without more, create a civil remedy.
Aldworth v. F.W. Woolworth Co., 295 Mass. 344	Authority on civil liability and statutory interpretation	Cited to support the court's view that § 34's violation does not itself create civil liability.
Heilbronner v. Scahill, 303 Mass. 336	Principle concerning the creation of civil remedies from statute	Cited in connection with the proposition that the statute does not manifest legislative intent to create a civil cause of action.
Richmond v. Warren Institution for Savings, 307 Mass. 483	Authority on statutory construction and civil remedies	Cited to support the court's statutory interpretation.
Belding v. Johnson, 86 Ga. 177	Authority that furnishing intoxicating liquor is not naturally and probably followed by commission of crime	Cited to support that the perpetration of a crime is not the natural and probable consequence of furnishing intoxicating liquor.
Waller's Administrator v. Collinsworth, 144 Ky. 3	Same principle: crime not natural and probable consequence of furnishing liquor	Cited to support lack of proximate causal connection between sale of liquor and criminal act.
Dennison v. Van Wormer, 107 Mich. 461	Same principle: criminal act not natural consequence of furnishing liquor	Cited to support absence of proximate cause linking sale to subsequent crime.
Swinfin v. Lowry, 37 Minn. 345	Same principle regarding foreseeability of crime from furnishing liquor	Cited for the proposition that furnishing liquor does not naturally lead to criminal acts.
O'Herron v. Gray, 168 Mass. 573	Massachusetts authority on causal connection requirements	Cited to show the plaintiff failed to prove causal connection between sale and alleged damages.
Horan v. Watertown, 217 Mass. 185	Authority on proximate cause and foreseeability	Cited to support conclusion that plaintiff did not establish requisite causal connection.
Carini v. Roman Catholic Bishop of Springfield, 219 Mass. 117	Authority on causal connection in negligence contexts	Cited to support court's causal analysis.
Slater v. T.C. Baker Co., 261 Mass. 424	Authority concerning proximate cause and liability	Cited as part of the court's analysis on causation.
Bellows v. Worcester Storage Co., 297 Mass. 188	Authority on proximate cause and foreseeability	Cited in support of the court's causal conclusion.
Fraser v. Chicago, Rock Island Pacific Railway, 101 Kan. 122	Authority on proximate cause and liability for third-party actions	Cited to support that criminal acts are not necessarily the natural consequence of prior negligent acts.
Chesapeake Ohio Railway v. Whitaker's Administrator, 165 Ky. 590	Authority on limits of liability for third-party criminal acts	Cited to support the lack of proximate causation.
Sira v. Wabash Railroad, 115 Mo. 127	Authority regarding foreseeability and proximate cause	Cited to buttress the causal analysis.
Ragone v. State, 243 N.Y. 607	Authority on criminal acts and liability of third parties	Cited in discussion of foreseeability and causal connection.
Horgan v. Pacific Mills, 158 Mass. 402	Authority that a plaintiff may pursue a common law remedy for consequential damages resulting from wrongs to another	Cited to frame the plaintiff's attempt to recover consequential damages at common law.
King v. Viscoloid Co., 219 Mass. 420	Authority on derivation of consequential damages from injury to another	Cited to explain principles governing recovery of consequential damages.
Slavinsky v. National Bottling Torah Co., 267 Mass. 319	Authority on recovery for harm caused by another's wrong	Cited in discussing plaintiff's attempt to recover for son's injury.
Hatch v. Mutual Life Ins. Co., 120 Mass. 550	Authority that a wrongdoer is not liable for consequences directly attributable to plaintiff's own criminal act	Cited to show the son could not recover for damages directly attributable to his own criminal assault.
Slocum v. Metropolitan Life Ins. Co., 245 Mass. 565	Authority concerning recovery limitations where plaintiff's loss stems from his own wrongful act	Cited to support that the son could not recover for consequences of his crime.
Szadwicz v. Cantor, 257 Mass. 518	Authority on limits of recovery for consequences of one's own wrongdoing	Cited to support the rule that the son could not recover for the assault he committed.
DeMello v. John Hancock Mutual Life Ins. Co., 281 Mass. 190	Authority on limitations of recovery for consequences of wrongful acts	Cited to support the son's inability to recover and the derivative nature of the father's claim.
Millen v. John Hancock Mutual Life Ins. Co., 300 Mass. 83	Authority on consequential and derivative damages	Cited to support that the plaintiff's right to consequential damages is derivative of the son's right.
Dennis v. Clark, 2 Cush. 347	Authority that a parent's right to consequential damages is derivative of a child's cause of action	Cited for the principle that if the son had no cause of action, the father has none.
Thibeault v. Poole, 283 Mass. 480, 486	Authority on derivative nature of consequential damages	Cited to show the plaintiff's derivative right depends on the son's right.
Mikaelian v. Palaza, 300 Mass. 354	Authority concerning derivative claims for consequential damages	Cited to support the derivative-nature analysis.
Colburn v. Spencer, 177 Mass. 473	Statutory cases arising under statutes that gave remedies for intoxication-caused damages	Identified as distinguishable because those cases involved an explicit statutory remedy; not authority for common-law liability here.
McNary v. Blackburn, 180 Mass. 141	Statutory cases providing a remedy for damages due to intoxication	Noted as distinguishable and not controlling because they involved express statutory remedies.

Court's Reasoning and Analysis

The court analyzed each count separately. For the first count, which alleged an illegal sale "in violation of the General Laws" and sought recovery under the now-repealed civil damage statute (G.L. (Ter. Ed.) c. 138, § 49), the court held that the statutory cause of action was unavailable because § 49 had been repealed by St. 1933, c. 376, § 2. The court further explained that the present statutory provision penalizing sales to minors, G.L. c. 138, § 34 (as amended by St. 1937, c. 424, § 5), did not by itself create a civil cause of action: the statute neither expressly nor by necessary implication manifested legislative intent to create civil liability for its violation. The court relied on a series of prior decisions for this principle.

For the second count, which pleaded negligence in selling liquor to the minor and alleged consequential damages to the plaintiff (expense of defense, loss of services, disgrace), the court addressed proximate cause and foreseeability. The court stated the governing principle that one injured by the criminal act of another should not impose liability on a third person for negligence unless the third person ought reasonably to have anticipated that a crime would result from his act. The court found, and cited authorities for the proposition, that the perpetration of a crime is not the natural and probable consequence of furnishing intoxicating liquor. On the record presented, the plaintiff failed to show any causal connection between the sale and the damages claimed. Because the son could not recover damages directly attributable to the criminal assault he committed while intoxicated, the father's right to recover consequential damages was derivative; thus, if the son had no cause of action, the father had none.

The court distinguished cases that did provide statutory remedies for intoxication-related harms (Colburn v. Spencer and McNary v. Blackburn) as not controlling here because those decisions arose under statutes that expressly gave a remedy.

Holding and Implications

Holding: The court affirmed the judgment directing a verdict for the defendant and overruled the plaintiff's exceptions.

Implications: The direct effect is that the plaintiff may not recover damages from the defendant on either the statutory theory (first count) or the negligence/derivative consequential damages theory (second count). The court held that (1) violation of G.L. c. 138, § 34, standing alone, does not create a civil cause of action, and (2) the alleged negligence in selling liquor to the minor was not shown to be the proximate cause of the son's criminal conduct and resulting consequences, and therefore the father's derivative claim fails. The opinion does not announce a novel rule of law beyond application of existing precedents and statutory construction; it implements settled principles limiting civil liability arising from penal statutes and imposing proximate-cause/foreseeability limits on liability for another's criminal acts.

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ANTONIO BARBOZA vs. WILLIAM DECAS.

Alcoholic Liquors, Sale to minor. Actionable Tort. Proximate Cause. Negligence, Violation of law, Sale of liquor to minor. Parent and Child. Minor. Public Policy. Damages, Consequential.

A violation of G.L.c. 138, § 34, as appearing in St. 1937, c. 424, § 5, by a sale of alcoholic liquor to a minor does not of itself create a civil cause of action in favor of one alleged to have been damaged thereby. There was no causal connection between alleged negligence of one in selling alcoholic liquor to a minor in violation of G.L.c. 138, § 34, as appearing in St. 1937, c. 424, § 5, and alleged loss suffered by the minor's father through the minor's being imprisoned for an assault with intent to commit rape occurring while he was intoxicated from drinking the liquor. A minor imprisoned for a crime committed while intoxicated from liquor sold him in violation of law could not have recovered damages from the seller of the liquor for his imprisonment; and therefore his father could not recover from the seller consequential damages consisting of expense, incurred in defending the son on the criminal charge, and of loss of his services.

RONAN, J.

This is an action of tort to recover damages alleged to have been sustained by the plaintiff by reason of the sale of intoxicating liquor by the defendant to the plaintiff's minor son. There was evidence that the son, who was between seventeen and eighteen years of age, purchased a quart of wine at the defendant's store at about eight o'clock on the evening of March 26, 1938; that, after he had consumed most of the wine, he went to a moving picture theatre from which he was removed by a police officer at about half past nine o'clock on account of disorderly conduct; that he returned to the defendant's store and purchased a small quantity of whiskey, which he drank; that later he met two friends but refused to go home with them; that after drinking the whiskey he lost consciousness and remembered nothing until he found himself in the police station, whither he had been taken after his arrest at about midnight for an assault with intent to commit rape; that he subsequently pleaded guilty to that offence in the Superior Court and was sentenced to State Prison. The son lived with the plaintiff, to whom he contributed a part of his earnings. The plaintiff excepted to the ruling directing a verdict for the defendant.

The first count of the declaration alleged a sale of intoxicating liquor by the defendant to the minor "in violation of the General Laws of the Commonwealth"; that the minor consumed said liquor and thereby became intoxicated; and that, "in consequence of the said intoxication, the plaintiff was injured in person, property and means of support." This count is not based upon negligence but rests entirely upon an alleged illegal sale of liquor. It purports to set out a cause of action under the civil damage statute, so called, G.L. (Ter. Ed.) c. 138, § 49, which gave a parent who was injured in person, property or means of support in consequence of the intoxication of his son a cause of action against the one who, by selling the liquor, caused in whole or in part such intoxication. This statutory cause of action was not available to the plaintiff, as § 49 had been repealed by St. 1933, c. 376, § 2. Wilson v. Head, 184 Mass. 515. Wrentham v. Fales, 185 Mass. 539. Mayor Aldermen of Taunton, petitioners, 290 Mass. 118. Pittsley v. David, 298 Mass. 552.

Statute 1933, c. 376, § 2, substituted a new chapter 138 for the old chapter. This new chapter in § 34, as amended by St. 1937, c. 424, § 5, provides, in so far as material, that "whoever makes a sale or delivery of any such [alcoholic] beverages or alcohol to any person under twenty-one years of age . . . shall be punished by a fine" or by imprisonment or both. The plaintiff relies upon a violation of this section to support the count. But the mere violation of this statute, in and of itself and apart from and independent of any other ground, does not give the plaintiff a cause of action to recover damages. The statute does not expressly or by necessary implication manifest any legislative intent that its violation shall have that effect. The ruling of the judge directing a verdict for the defendant upon the first count was right. Palmigiani v. D'Argenio, 234 Mass. 434. Richardson v. Whittier, 265 Mass. 478. Garland v. Stetson, 292 Mass. 95. Wynn v. Sullivan, 294 Mass. 562. Aldworth v. F.W. Woolworth Co. 295 Mass. 344. Heilbronner v. Scahill, 303 Mass. 336. Richmond v. Warren Institution for Savings, 307 Mass. 483.

The remaining count of the declaration is based upon negligence of the defendant in selling liquor to the plaintiff's minor son which, it is alleged, resulted in disgrace and shame to the plaintiff, the expenditure of money for the defence of the son, and the imprisonment of the son with the loss of his services to the plaintiff.

A person who is injured on account of the criminal act of another ought not to be allowed to impose liability upon a third person on the ground that the negligence of the latter was an efficient and contributing cause of the crime, unless the act of the third person was such that he ought to have reasonably anticipated that the commission of crime would result from his act. It has been held that the perpetration of a crime is not the natural and probable consequence of furnishing intoxicating liquor to the criminal. Belding v. Johnson, 86 Ga. 177. Waller's Administrator v. Collinsworth, 144 Ky. 3. Dennison v. Van Wormer, 107 Mich. 461. Swinfin v. Lowry, 37 Minn. 345. Upon this record the plaintiff fails to show any causal connection between the sale of the liquor and the damage that he alleged he has sustained. O'Herron v. Gray, 168 Mass. 573. Horan v. Watertown, 217 Mass. 185. Carini v. Roman Catholic Bishop of Springfield, 219 Mass. 117. Slater v. T.C. Baker Co. 261 Mass. 424. Bellows v. Worcester Storage Co. 297 Mass. 188. Fraser v. Chicago, Rock Island Pacific Railway, 101 Kan. 122. Chesapeake Ohio Railway v. Whitaker's Administrator, 165 Ky. 590. Sira v. Wabash Railroad, 115 Mo. 127. Ragone v. State, 243 N.Y. 607.

The plaintiff is pursuing a common law remedy to recover damages for expenses incurred and loss of services sustained on account of a wrong suffered by his son which, he alleges, was caused by the negligence of the defendant. Horgan v. Pacific Mills, 158 Mass. 402. King v. Viscoloid Co. 219 Mass. 420. Slavinsky v. National Bottling Torah Co. 267 Mass. 319. The son could not recover damages that were directly attributable to the criminal assault which he committed. Hatch v. Mutual Life Ins. Co. 120 Mass. 550. Slocum v. Metropolitan Life Ins. Co. 245 Mass. 565. Szadwicz v. Cantor, 257 Mass. 518. DeMello v. John Hancock Mutual Life Ins. Co. 281 Mass. 190. Millen v. John Hancock Mutual Life Ins. Co. 300 Mass. 83. The plaintiff's right to recover consequential damages on account of an injury sustained by his minor son is derivative and, if the son had no cause of action, the plaintiff has none. Dennis v. Clark, 2 Cush. 347. Thibeault v. Poole, 283 Mass. 480, 486. Mikaelian v. Palaza, 300 Mass. 354.

The cases of Colburn v. Spencer, 177 Mass. 473, and McNary v. Blackburn, 180 Mass. 141, are plainly distinguishable. Both of them arose under a statute giving a remedy for damages due to the intoxication of a person against the one who caused the intoxication by furnishing the liquor to such person. Neither is authority for the proposition that the seller of the liquor is liable at common law to one who has sustained damage by the sentence and commitment of his minor son to a penal institution for the commission of a crime while intoxicated by liquor furnished to him by the seller.

Exceptions overruled.

BARBOZA v. DECAS