Carlisle

Plaintiffs’ complaint seeks damages for the wrongful death of their husband and father. General and special demurrer to the complaint was sustained with leave to amend. Plaintiffs formally declined to amend, and judgment of dismissal followed. Plaintiffs appeal.

Although the complaint is in four counts, the essence of each is the allegation that decedent was, and was well known to defendant bar owners to be, “a habitual drunkard or an alcoholic and had lost the will power to resist the temptation when liquor was offered to1 him.” It is asserted that defendants nevertheless served liquor to decedent in violation of the penal prohibition (Bus. & Prof. Code, § 25602), “until and after he became intoxicated and unable to care for himself in any manner,” that he became violently ill and died in the bar when he strangled upon inhaling his own vomit.

When the trial court’s ruling was made, it conformed strictly to prevailing authority (Cole v. Rush, 45 Cal.2d 345 [ 289 P.2d 450 , 54 A.L.R.2d 1137 ], and cases there cited). Since that ruling, however, the Supreme Court has modified the prior rule (Vesely v. Sager, 5 Cal.3d 153 [ 95 Cal.Rptr. 623 , 486 P.2d 151 ]). Appellant…