SOMERVILLE, J.
The question raised for our decision, by the ruling of the court below on the demurrer to the complaint, is, whether, under the provisions of section 2641 of the present Code, 1876, authorizing an action to be brought for a wrongful act or omission causing the death of another, the personal representative of the deceased person can maintain an action against a retailer of intoxicating liquors, who sells or gives them to a man of known intemperate habits, who is helplessly drunk at the time, the drinking of which causes his death almost instantaneously.
1. The statute, under which the action is brought, provides that “when the death of a person is caused by the wrongful act or omission of another,- the personal representative of the former may maintain an action against the latter at any time within two years thereafter, if the former could have maintained an action against the latter for the same act or omission, had it failed to produce death, and may recover such sum as the jury deem just.” The remainder of the section, providing how the amount shall be distributed, and for the survival of the action against the personal representative of the wrongdoer, does not affect the question under consideration, and need not therefore be particularly referred to by us. — Code, 1876, § 2641.
The selling or giving away of spirituous, vinous, or malt liquors, in any quantities whatever, to persons of known intemperate habits except upon the requisition of a physician for medicinal purposes, is in tliis State made a misdemeanor, and a license to sell or retail affords no protection to the guilty party. — Code, 1876, § 4205.
The foregoing section of our Code (§ 2641), like many similar statutes in other American States, was evidently modelled after what is commonly known in England as Lord Campbell’s Act, 9 and 10 Viet. c. 93, enacted by the British Parliament in the year 1846. The language there used was that “ whensoever the death of a person shall be caused by (any) wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in [509]*509respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.”
2. The purpose of this, and like legislation, was clearly to correct a defect of the common law, by a rule of which it was well settled, that a right of action based on a tort or injury to the person, died with the person injured. Under the maxim, “ Actio personalis moritur cum persona” the personal representative of a deceased person could maintain no action for loss or damage resulting from his death. — Hallenbeck v. Berkshire, R. R. Co., 9 Cush. 480; Quinn v. Moore, 15 N. Y. 436. The reason for the rule was said by Baron Parke, in a case arising before him under the English statute, to be, that in the eye of the common law “the value of life was so great as to be incapable of being estimated by money.” The rule probably, however, rests on a broader basis.
3. These statutes, it will be observed, each give a right of action only in cases where the deceased himself, if the injury had not resulted in his death, might have sustained a recovery. They continue, in other words, for the benefit of specific distributees “a right of action which, at the common law, would have terminated at the death, and enlarge its scope to embrace the injury resulting from the death.” Cooley on Torts, 264.
4. The condition that the action must be one which could have been maintained by the deceased had it failed to produce death, or had not death ensued, has no reference to the nature of the loss or in jury sustained, or the person entitled to recover, but to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action. — Saunders on Negligene, 219; South & North Ala. R. R. Co. v. Sullivan, 59 Ala. 272, 281; As said in Whitford v. The Panama R. R. Co. 23 N. Y. 465, where a similar phrase in the New York statutes was construed, it “ is inserted solely for the purpose of defining the kind and degrees of delinquency with which the defendant must bo chargeable in order to subject him to the action.”
5. It necessarily follows, and has been accordingly decided with great uniformity by the courts, that where the negligence of the person killed has contributed proximately to the fatal injury, no action can be maintained by his personal representative under this statute, because the deceased himself would not have been entitled to recover had the injury not proved fatal. — Cooley on Torts, 364; Saunders on Neg., 215; 1 Anderson on Torts (Wood’s Ed.) p. 621, § 575 ; Savannah & Memphis R. R. Co. v. Shearer, 58 Ala. 672.
[510]*5106. We first observe, that the cause made by the complaint does not seem to us to fall within the letter or spirit of the statute, and the court below so decided on the demurrer. The death of the deceased was not “ caused ” so much by the wrongful act of the defendants in selling him whiskey, as by his own act in drinking it after being sold to him. The only wrongful act imputed to the defendants was the selling, or giving, as the case may be, of intoxicating liquors to the deceased while he was in a stupidly drunken condition, knowing that he was a man of intemperate habits. It is not shown that the defendants used any duress, deception, or arts of persuasion to induce the drinking of the liquor. The act, however, as we have said, was a statutory misdemeanor. But this was only the reinóte, not the proximate or intermediate, cause of the death of plaintiff’s intestate. The rule is fully settled to be that “if an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote.” — Cooley on Torts, 68-69 ; 1 Anderson on Torts, 12-13 ; §§ 10-11. The statute under consideration was not intended to annul, but rather to preserve this rule of the common law, so necessary to the certainty and justice of its administration, that there must be some proximate connection between the wrong done and the damage claimed to result from it, that the two must be sufficiently conjoined so as to be “ concatenated as cause and effect,” as often said. Had it not been for the drinking of the liquor, after the sale, which was a secondary or intervening cause co-operating to produce the fatal result, and was the act of deceased, not of defendants, the sale itself would have proved entirely harmless. Hence it can not be said that the wrongful act of the defendants, in making sale of the liquor, caused the death of King; but rather his own act in drinking it. And this must be true, whatever the condition of his mind, or state of his intellect, and without regard to the question of any contributory negligence on his part. The case, we repeat, is one not covered by the statute.
7. The plaintiff is, moreover, in our opinion, debarred from recovery by the contributory negligence of the deceased, even admitting that the wrongful act of the defendants caused the death of King.
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SOMERVILLE, J.
The question raised for our decision, by the ruling of the court below on the demurrer to the complaint, is, whether, under the provisions of section 2641 of the present Code, 1876, authorizing an action to be brought for a wrongful act or omission causing the death of another, the personal representative of the deceased person can maintain an action against a retailer of intoxicating liquors, who sells or gives them to a man of known intemperate habits, who is helplessly drunk at the time, the drinking of which causes his death almost instantaneously.
1. The statute, under which the action is brought, provides that “when the death of a person is caused by the wrongful act or omission of another,- the personal representative of the former may maintain an action against the latter at any time within two years thereafter, if the former could have maintained an action against the latter for the same act or omission, had it failed to produce death, and may recover such sum as the jury deem just.” The remainder of the section, providing how the amount shall be distributed, and for the survival of the action against the personal representative of the wrongdoer, does not affect the question under consideration, and need not therefore be particularly referred to by us. — Code, 1876, § 2641.
The selling or giving away of spirituous, vinous, or malt liquors, in any quantities whatever, to persons of known intemperate habits except upon the requisition of a physician for medicinal purposes, is in tliis State made a misdemeanor, and a license to sell or retail affords no protection to the guilty party. — Code, 1876, § 4205.
The foregoing section of our Code (§ 2641), like many similar statutes in other American States, was evidently modelled after what is commonly known in England as Lord Campbell’s Act, 9 and 10 Viet. c. 93, enacted by the British Parliament in the year 1846. The language there used was that “ whensoever the death of a person shall be caused by (any) wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in [509]*509respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.”
2. The purpose of this, and like legislation, was clearly to correct a defect of the common law, by a rule of which it was well settled, that a right of action based on a tort or injury to the person, died with the person injured. Under the maxim, “ Actio personalis moritur cum persona” the personal representative of a deceased person could maintain no action for loss or damage resulting from his death. — Hallenbeck v. Berkshire, R. R. Co., 9 Cush. 480; Quinn v. Moore, 15 N. Y. 436. The reason for the rule was said by Baron Parke, in a case arising before him under the English statute, to be, that in the eye of the common law “the value of life was so great as to be incapable of being estimated by money.” The rule probably, however, rests on a broader basis.
3. These statutes, it will be observed, each give a right of action only in cases where the deceased himself, if the injury had not resulted in his death, might have sustained a recovery. They continue, in other words, for the benefit of specific distributees “a right of action which, at the common law, would have terminated at the death, and enlarge its scope to embrace the injury resulting from the death.” Cooley on Torts, 264.
4. The condition that the action must be one which could have been maintained by the deceased had it failed to produce death, or had not death ensued, has no reference to the nature of the loss or in jury sustained, or the person entitled to recover, but to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action. — Saunders on Negligene, 219; South & North Ala. R. R. Co. v. Sullivan, 59 Ala. 272, 281; As said in Whitford v. The Panama R. R. Co. 23 N. Y. 465, where a similar phrase in the New York statutes was construed, it “ is inserted solely for the purpose of defining the kind and degrees of delinquency with which the defendant must bo chargeable in order to subject him to the action.”
5. It necessarily follows, and has been accordingly decided with great uniformity by the courts, that where the negligence of the person killed has contributed proximately to the fatal injury, no action can be maintained by his personal representative under this statute, because the deceased himself would not have been entitled to recover had the injury not proved fatal. — Cooley on Torts, 364; Saunders on Neg., 215; 1 Anderson on Torts (Wood’s Ed.) p. 621, § 575 ; Savannah & Memphis R. R. Co. v. Shearer, 58 Ala. 672.
[510]*5106. We first observe, that the cause made by the complaint does not seem to us to fall within the letter or spirit of the statute, and the court below so decided on the demurrer. The death of the deceased was not “ caused ” so much by the wrongful act of the defendants in selling him whiskey, as by his own act in drinking it after being sold to him. The only wrongful act imputed to the defendants was the selling, or giving, as the case may be, of intoxicating liquors to the deceased while he was in a stupidly drunken condition, knowing that he was a man of intemperate habits. It is not shown that the defendants used any duress, deception, or arts of persuasion to induce the drinking of the liquor. The act, however, as we have said, was a statutory misdemeanor. But this was only the reinóte, not the proximate or intermediate, cause of the death of plaintiff’s intestate. The rule is fully settled to be that “if an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote.” — Cooley on Torts, 68-69 ; 1 Anderson on Torts, 12-13 ; §§ 10-11. The statute under consideration was not intended to annul, but rather to preserve this rule of the common law, so necessary to the certainty and justice of its administration, that there must be some proximate connection between the wrong done and the damage claimed to result from it, that the two must be sufficiently conjoined so as to be “ concatenated as cause and effect,” as often said. Had it not been for the drinking of the liquor, after the sale, which was a secondary or intervening cause co-operating to produce the fatal result, and was the act of deceased, not of defendants, the sale itself would have proved entirely harmless. Hence it can not be said that the wrongful act of the defendants, in making sale of the liquor, caused the death of King; but rather his own act in drinking it. And this must be true, whatever the condition of his mind, or state of his intellect, and without regard to the question of any contributory negligence on his part. The case, we repeat, is one not covered by the statute.
7. The plaintiff is, moreover, in our opinion, debarred from recovery by the contributory negligence of the deceased, even admitting that the wrongful act of the defendants caused the death of King. It is shown that the deceased was helplessly drunk when he purchased and drank the liquor, so much so as to render the exercise of ordinary care by him impracticable, if not impossible. The presumption is that this condition was brought about by his own voluntary or negligent act, by the [511]*511persuasion or coercion of another. If we admit that the State of mind thus produced was analogous to that of one non compos, or insane, so that the deceased was in mental darkness and so unconscious as to be at the moment incapable of knowledge or consent, thus rendering him morally unaccountable, yet the fact confronts us that this condition, was the result of his own negligence or wantonness, and without it the accident of his death would not probably have occurred. The deceased, by the exercise of ordinary care, might have escaped making himself helplessly drunk. By not doing so he was the author of his own death, in view of the fact that it does not appear that the defendants, after the fatal draught was taken, could by the exercise of ordinary care, or even by any practicable means at hand, have avoided the consequences of death which almost instantly followed. This involved every element of contributory negligence, and was sufficient to prevent a recovery by the deceased, had death not ensued. — Railway Accident Law, (Patterson), 74; Illinois Cen. R. R. Co. v. Cragen, 71 Ill. 177; Cramer v. Burlington, 42 Iowa, 315 ; Whart. on Neg. § 332.
8. We have thus hypothetically admitted the contention of appellant’s counsel that one drunk to unconsciousness is to be placed upon the same ground as infants of tender years, persons non compos, or insane, so far as concerns the question of plaintiff’s contributory negligence. The contrary of this, however, would seem to be true, as the basis of the rule governing the latter classes is that of moral accountability. Imbeciles, lunatics, and infants are not accountable morally for the state of their minds, and yet the law governing the subject of contributory negligence, even as applicable to them, is admitted to be in a very unsatisfactory and doubtful state. Cooley on Torts, 680, 682. ■ A drunkard, or one in a state of voluntary intoxication, can scarely claim so much charity from the law in this particular as imbeciles and lunatics, because he has by his own agency, either wantonly or negligently, brought about his own misfortune. As drunkenness is no excuse for crimes, or for torts, no more should it be a basis for the liability of another in an action' brought against him by the victim of such inebriety.
9. The case of McCue v. Klein, (60 Tex. 168), s. c. 48 Amer. 260, referred to by appellant’s counsel as an authority to support the present action, although analogous to it in some respects, is broadly distinguishable from it in one important particular. There the death of the deceased was brought about by the defendants’ conspiring together to induce and persuade the deceased to swallow a large amount of whiskey, he being already so drunk as to be deprived of [512]*512his reason and to be rendered incapable of resistance, the draught being thus imposed upon him in his helpless condition. The case was made to rest on the ground that the administration of the deadly draught, like that of a noxious drug, was an assault, the deception by which it was accomplished being a fraud on the party’s will, equivalent to force in overpowering it.— Com. v. Stratton, (114 Mass. 303) 19 Amer. Rep. 330.
The demurrer to the complaint was, for the foregoing reasons, properly sustained, and the judgment of the Circuit Court must be affirmed.