^>, ^0^.\^^<^ IMAGE EVALUATION TEST TARGET (MT-S) / o 'm "^ 1.0 ■^ m 1 2.2 I.I l'-8 1.25 1.4 1 1.6 l|S== 6" V] <^ /i % "^ J^ # /i ? Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 vim!^-9V v> 'JiBs^asftEvat*! ii^ L Transpas-'iiii^s Quality tf prir Qualltii in^gale de I'impression Includes supplementary materii Comprend du materiel supplimentaire OrJy edition available/ Seule MItlon disponlbie I — I Pages discoloured, stained or foxed/ I — I Pages detached/ I I Shov\fthfc»jyh/ I — I Quality tf print varies/ I — I Includes supplementary material/ I — I OrJy edition available/ Pages wholly or partially obscured by errata slips, tissues, etc., have been ref limed to ensure the best possible image/ Les pages totalement ou partiellement obscurcles par un feulllet d'errata, une pelure, etc., ont 6t6 filmies A nouveau de fa9on d obtenir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est filmd au taux de reduction indlqu« ci-dessous. 10X 14X 18X 22X 26X 30X J ■i^HUM 19X 16X 20X '24X 28X 32X ,,>iMil»iWBi Mr i i « MM i W llii WH i iWMl ^^ B I fier e ita lure. : 2X The copy filmed here has been reproduced thanks to the generosity of: Library of Congress Photoduplication Service The imrges appearing here are the bdst C|uallty possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol — )► (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: 1 t ^ 1- a 3 L'exemplaire film6 fut reproduit grdce d la gAn6rosit6 de: Library of Congress Photoduplication Service Les images suivantes ont 6X6 reproduites avec le plus grand soin, compte tenu de la condition et da la nettet6 de I'exemplrire film6, et en conformlt6 avec les conditions du contrat de filmage. Les exemplaires originaux dont la couverture en papier est LAWSON, CorNSELOB AT I.AW. ST. LOUIS: THE CENTRAI^ LAW JOURNAL. 1877. 9^ ? 3^ <=le that the advocates of prohibitory laws may never be successful. There are two considerations against which they are waging an almost hopeless war, the one without which a government can hardly endure, the other with which we do not desire to pail even in the least — revenue and liberty. The laws, whi-h are the subject of this review, Rre open to no sui!h objection ; and that they have been adopted in but eleven states, is at least singular. In the enactment of the statutes giving a right of action for damages caused by the sale of intoxicating liquors, the legislatures have not sought to interfere with their sale, but have endeavored to give redress and compensation for damages actually inflicted l)y one person and sufl'ered by another, in cases where no remedy was to be had under the law as understood and administered in the courts.^ The seller ot intoxicating liquors is made responsible for the injurious results of his 1 Bedore v. Newton, 34 N. II. 117 ; s. c, 2 Cent. L. J. 363. iirtyor oi anysi'i't. line statcH become session of the leg- ale, either entirely reat the trade in ) society and good more recently, it* )rudcnt and ill-ad- 10 form of a niod- aient of their own re<'. The lefrislaiui-' has a riiiht to proliil)!! the sellin.ir of articles which are considered injurious to society.' The ,,nestion is donl)tful only, when such prohibitions interfere with the vested rij-hts of property. This (piestion was raised in the Supreme (\.nrt of the United States in the ease last cited, but not decided, on the frrouml that it was not properly presented in the record. But from the ex- pressions of the Judsics who delivered opinions then, it would sc.«m that such rijihts in property, even when stand- in?.' in the way of the pul)lic -rood, can be divested only l)y awardinji- proper compensation to the owner. But the (|uestion'", as it arises under the damage acts, presents wholly ditferent features. Under these acts, no property is taken' awav ; only the use of a license is interfered with, and such a re<.nd"ation can not be said to ditfer essentially from the provisions of the excise laws forbiddin.n sales to minors or on Sunday. As the vi<;ht of the legisla- ture to restrain the sale of li((Uors is un(iuestionable, the person taking a license is sul)iect to all existing laws, and to such as may thereafter be passed. . The right given is i)ersonal, and nuiy l)e wholly taken aAvay, or it may be restricted or burdened with conditions or penalties to any extent the law-making power may deem proper. It is not a contract depriving the legislature of the right to act.s The Supreme Court of the United States has very recently reiterated these views," as to the regulation of private property, wherever necessary for the public good. Bedore v. Newton, 54 N. II. 117 ; s. c. 2 Cent. L. J. 3G3 ; Mulforel v. Clewcll 21 Oliio St. 191; Dnroy v. I.echter, 10 n>. 4S3; Scaler v. Smith, 4 Cent. I.. ,K 271 ; State v. Johnson (111.), 3 Month. West. Jur. 72. 7 Bartmeyer V. Iowa, 18 Wall. 129. s Baker V. Pope, 2 Hun, .").")7. II Munn et al. v. People, 4 Cent. L. J. 250. ^ii 1 rill to soil intdxit'ii- antl iinniunilit's of ])\ lilC t'olll'tfi'lllil OH iuo forbiddoii to proliibit ilio sollinu: IS to society.' Tlio •oliihitioii'* iiitortoro This (luosliou wiis iiitod Stiitos in tlio <>;r()Uii(l that it nus But tVoni tlio ox- opitiioiis tlu'ii, it V, cvon wlioii staiul- 1)0 (livostod only hy ; owner. But the lago acts, iirosonts acts, no property is is interfered with, to differ essentially rts tbrbiddiiiir sales ijxht of the logi sla- un(|nestionaI)le, the ) all existinl or „tl...',wi»v. 2. That »l.o lia.l l"-«i. it.jnfi'a i" P"-"""- ."'' : Ltim,. 8. TItat th,. iotoxi..ation IVon, »'"■''"• "'^ ro.ulto.l was ,a,iso,l ii. whoir, of ui rati, hy li. »o.l nur, th.. ,l..f..n.lant,» Iti Now Hainl.»hif,., in n« ot th.MU.it.h o .1 ahilitv of anv ,H.f»oi, in ,.on»..„u,.n,.,. ol tntoxtcatton Z„TL L of :i.,.'of ,.nla»fnlly fufnish..,!. *n,u,....» n.ay . ..ov,.f.... hy any o h.|„.n,U.„t n|,o„ th. '^i'-"'}^'-;^^ or upon whom th.. ii.jnf...l pof-on .» .h.lK.„.h.nt to tntan. " , in„„1, ff.nn the pcf-on unlawfully »..lli..^' of tnnn*- t tho li.;.or." Uu.lef this a., thefe .n-o -"-'f"™' cZcs in which a f..n,...ly hy actau, ,s (.nv..,,. All r.t thtm „.,„„„a that „c wm koep aa o*,!, ..oa». an^ w .l^"-; «»«•■ -", r:r;.rS™d;;;,;p;ot.»t.ac,,.,,. .v,.oar.o.co„,pe.ea. jurisdiction.'" 16 Fountain v. Draper, -t*; I"^^" •"^;^ intoxication, shall commit any .Uo by W»"' '■ !>' *'^ »' ca. S B.a^l. intoxication, .hall l.e liable to -i-^HiSdi£3=,:y;^^ from the use of liquor ""'^^^J '^ ^ j j .^.e^ crson for means of '''''' '? «; rnTp^ron wrrsrcirinj^^^^ person^ he dependent support, or anj P^^^ °° J" „ unlawfully Belling or furnishing any such T' TrfmlTS'tu SSge o l^s' stLlned'm consequence of such IKstoherotelh^^^^^ and any married woman INTOXICATIXd Mtn'OHS. 9 ic Snin-cino Court, lilt in an uction by •y lor iH'r to orttub- imnd, hiibitutil or irod in |)('rson, or •(lucncc of Huch in- ni which thi' injury Li-t, by tht" snlinjr, I to tlu' husbiind by II wise of thf death ^iice of iiitoxitation shod, ihunagcs may the iijured person, ependeut for nieuuH ' 8elliu case of death or disability, in conseciuence of intoxication, with u remeily to any party on whom the injured person may bo dependent.'* Sec. ;5. The La^^s of IlUnoh, Iowa, Kansas, M}chier, oi other person, who shall be Injured In person, or property, or means of support, bv any intoxicated person, or in consequence of the intoxica- tion, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person, or per- sons, who shall, by selling, or giving, intoxicating liquors, have caused the intoxication, iu whole, or in part, of such person, or persons; and any person owning, renting, leasing, or permitting, the occupation ot 10 INTOXICATINO LIQIOH^- statutes have been passed, an.l are now, and lor so.ne years ,,^,,, ,,,„, i, tovee, providing- a UH.re --'P^'te ve.ne.l u a,„,a..-s vesuUinir tVon. the saU" of mtox.eat.n,.- h.,uo,>. Thes;statutes are sul.stantiallv the sa.ne in then' ,.rov,s,on. .„V ..aUUng. on-u.ise. ancn..vh.g Uno....... U.U .^^^^^^ ,. ., ,.e ..Ul tUevein or ^J-^-,.. 1... ^^^ f;;;:^ ^^^^ ,,, shall Knowinjily pernut tluiLin \m ■ .ui ■ ,,or«(Mi. shall be have caused, in whole or in „art. he >"^"^ ^' ' ,:^^ / \[: ;„„ ,, ^m,,. hable. severally o.- jointly. -J'^; -.y^; ^ l.i ll;:rfor ex..^ iutoxieatins li'l'""'' ^'toresaid lo. all ''-'"^^ » j,,,,^ ,„ ,„,•,. ph...yaa.„a.es:..,a.n.-.^^on.^^ suits, and to control th.' sa ni an.l tn , „ ^ .^j.i ^.jfi.e,. ,,a all '>--'^---;:;f i^::^:;:; r ua;a;:.;::vne.t ^.La. .. .. • '' ":;';;"; ;"• l U uUalim sallorgivln. away, of intox>e=. oom-t shall ilnu , an. i . , ^^ t,,,. leasee or tenant. :;r,s«:;'.Sv:^r™vr.;;*--.«- — '^ ^-" personal property ot sucl. '^•" :' ' !^„^^^.^;,citlion. shall be liable ; exe:npt from levy -''i,- -'17 ,^S";'.",';^ . state nntil paid : and ,„a sneh jud,n.ent ^''-^ /"^ ■^^;' ^ , ' „,nher any buildin, or ^" ^^:^^'Z^::^aoe^Se^iu whole or in part, for t.,e sale of prenuses to be nscl m ' j j ,„„„it the same to be so us,.d l„toxieatl,.g ;;!;;;- .-.,J^ I'^ler.. Ued or oeeupied shall be heid or oeeupied. «ueh »;"'^»"° ^ , i„(joTnent against any pesson ,h,ble for and u.ay be sold to paj anj -"J^' ^^^^^^^^ ,^J ,,^ ,„d ,, ,„,,. oecnpying sueh building or pn>m se . l^^^^^^^l^^,,,,^. whieh ^e.t the same to *l';;i;;:j^-^.^,:^,,:^tj:;:r,, after execution shall remains unpuul or an> p. t "" <^^«» ^^^ .^^^^ ,,.,,„,„ ,„eh judgmenl issue against ^^'^^.l^^^ ,:^^,;^X ,,e.Stion shall issue against the shall have been reeoveietl, ''"" '"^ .,. p,uo satisfy said exe- „,operty so leased or rented, the «!^ ;^^\\' ^^,'^^^^^ J aforesaid. :.,,on out of f ;;^:;^;;^^^-r;;;n .:ni::th; jtoi n^mor. or other ti<,n relatingto the cc,l.c.tW>n of ^^^^'^ ^^ .^amshop. or to sell SKC. 5. '• >o 1'--" ; l^.;;*; j r "oard. or the authorities of any city ^^ INTOXICATING LIQt'OHS. u iuul for some vi'ars nnpU'tc vcnu'dy for itoxicafniii- litiiiors. ill thcif provisions hiu iiiloxU'iiliii.uli'liK'i'* line for "IIk'I" piiriio^f?. ntoxU-uting li1<' ; ;iict..«liallbei)aiiU>itb('r 111, or next friend, as tlie viiig away, of intoxiea- ^ of tlic lessee or tenant, ireniiscs where suoli un- u\d all suits for dannige> 1. in any of tin' cotirts of t for damages, and costs, ansefiiience of tlie sale of lion, tlie real estate and ,d, exeopt such as m;,y be oxeenlion. shall be lial)le ; val estate until paid: and [mother any building or I- in part, for the sale of it the same to be so used or oeeupied sliall be lield gment against any pesson Mlings may be had to sub- idgmeut reeovered. whieh ire or after execution shall linst whom such judgmeiit tion shall issue against the iroeeert to satisfy said exe-- d or occupied as aforesaid, jelong to a minor, or other onservator of such percon. held liable instead of suoli the provisions of this sce- nt." iieep a dramshop, or to sell the authorities of any city, liond in the penal sum of ipul ctrcct, ami, for the purposes of this review, may be n of the le«or worka forfeiture of his lease; and the circuit court in chancery „,av enjoin tlu- sale or giving away of intoxicating liquors by any essee of pren.lses. which may result in loss, danuige. or hab.hty to t»ie les,m or any person claiming under such lessor.*" Oomp. Laws, 1871. ^ ol. 1, ^noYork-Latos of 1873, Ch. C46. Sec. 1.-" Every husband, wife, child, narer . guardian, employer, or other person who shall be injured u. person or property, or means of support, by any intoxicated person, or in con- sequence of the intoxication, habitual or otherwise, of any person, shall Inve a right of atMon in liis or her name against any i)ersoii or persons who shall, by selling or giving away intoxicating li-iuors. [have] caused the intoxication in whole or in part of such person or persons; and any person or persons owning or renting or permitting the occuiiation ot any building or premises, and having knowledge that intoxicating li-iuors are to be sold ther."iii. shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained and for exemplary damages; and Ml damages recov-ered by a minor under this act shall be paid either to such minor, or to Ins or her parent, guardian, or next friend as the court shall direct; and the unlaw- ful sale or giving away of intoxicating liquors shall work a forfeiture of all ri<-lits of the lessee or tenant under any lease or contract of rent upon the premises." (Rev. Stats., 1875. Vol. 2. p. 046.) ^ , „ , „ , ,„ o!ao.-Act of May 1, 1854, 2 S and C. 1431. Section G of this act U substantially the same as section 1550. and section 7 as section Lw<^ of the Iowa code. Bv the Act of April 18, 1870 (Saylor 2300), section < ot the Act of May 1, 18.54, was amended so as to read like section 9 of the Illinois act. (3 Saylor's Stats. 2360. ch. 1871.) Section 10 of the Act of May 1. 1854, is amended by Act of Apiil 18, 1870 so as to read as follows : " For all fines, costs and damages assessed ajrai'nst anv person or persons in consequence of the sale of intoxicating liquors, as"provided in se.-tion 7 of this act, and the act to which this is amendatoi-v, the real estate and personal property of such person or per- sons of every kind, without exception or exemption, except under the act to amend an act entitled an act to regulate judgments and executions at to tlu« unlawfulness I this, in nuikinjr no Thov provitU' tlmt rdiim, oniployci", or il iis a bi'vorage, sliall l)e ling or giving lutoxica- siuy wiff, Imsband. par- [1 of liusband and wife. )f siK'li relation, and tlie be bis or lier sole and xii'ating liiinors by the ijll. at tlie option of tlie nreiiit I'ourt in olianeery ing litinors by any lessee or liability to the lessor ontp. Laws, 1871. Vol. 1, •ery husband, wife, child, shall be injured in person icated i)erson, or in con- viso, of any person, shall ist any person or persons ng litiuors. [have] caused ■rson or persons ; and any ing the occupation of any it intoxicating liipiors are ointly with the person or :iforesaid, for all damages I damages recovered by a i\i minor, or to his or lier all direct; and the unlaw- shall work a forfeiture of a or contract of rent upon 16.) Section G of this act is iction 7 as section 1557 of (Saylor 2300) , section 7 of read like section 9 of the ended by Act of April 18. osts and damages assessed of the sale of intoxicating id the act to which this is ?rty of sncli person or per- ption, except under the act dgnients and executions at INTOXICATING LIQUOHS, 13 other person, who shall be injured in person, or property, or means of support, hy any intoxicated person, or in eon- ,se(iuente of the intoxication, habitual or otherwise, of any ])«'rson, shall have a right of action in his or her own name law. passed March 1. 18:?1 (Chase 820), passed March 9, 1840, took eflcct March 15, 1840 (Curwen, ch. :W0). shall be liable for the payment thereof; and such fines, costs and damages shall be a lien upon such real estate until paid; and in case any person or i)ersons shall rent or lease to another or others any building or premises to be used or occu- l)ied in whole or iu part for the sale of intoxic-iting li(iuors, or shall per- mit the same to be used or occupied, in whole or in part, such building or premises so leased, used or occupied, shall be held liable for and may be sold to pay all fines, costs and damages assessed against any person or persons occupying such building or premises; and proceedings may be had to subject the same to the payment of any such flue and costs assessed or judgment recovered which remain unpaid, or any part thereof, either before or after execution shall issue against the property of the person or persons against whom such fine and costs or judgment shall have been adjudged or assessed; and when execution shall issue against the property so leased or rented, the officer shall proceed to sat- isfy said execution out of the building or premises so leased or occupied as aforesaid; and in case such building or premises belong to a minor, insane person, or idiot, the guardian of s\ieh minor, insane person or idiot who has control of such building or premises, shall be liable and account to his or her ware" for all damages on account of such use and occupation of such buildiuK Jr premises, and the liabilties for the fines, costs and damages aforesaid; and all contracts whereby any building or premises shall be rented or leased, and the same shall be used or oc- cupied in whole or in part for the sale of intoxicating liquors, shall be void; and the (lessee) person or persons renting or leasing said build- ing or premises, shall, on and after the selling or giving intoxicating liquors, as aforesaid. ])e considered and held to be in possession of said building or premises." (3 Saylor's Stats., 23G4, ch. 1871.) Section 7 of the Act of 1870, is again amended by an Act of February 18. 1875 (4 Saylor's Stats., p. 3394), as^ follows: •' Provided, that such husband, wife, child, parent, guardian, or other interested person liable to be so injured by any sale of intoxicating liquors to any person or persons aforesaid, who shall desire to prevent the sale of intoxicating liquors to the same, shall give notice either in writing or verbally before a witness or witnesses to the person or persons so selling or giving the intoxicating liquors, or to the owner or lessor of the premises wherein such intoxica- ting liquors are given or sold, or shall file with the township or cori)ora- tion clerk in the town.ship, village or city wherein such intoxicating liquor maybe sold, notice to all liqnor dealers not to sell to such person or persons any intoxicating liquors from and after ten days fron> the date of 80 filing said notice ; and such notice or notices filed with such clerk 14 IXTOXICATING LIQUOKS. scvorallv or jointly a^iinst any pom).! who shall, l.y sc 1- | in.r „r ".rivin- awav intoxicatin- li conditioned for the payment o^ all danuigc's to any person, whleh may be inllicled upon or suite., d bj "hi e ther in person or property, or n.eans of support, by reason of ob- t bin" 1 ens. , selling or giving away intoxicating drinks, or deahng he en ;'• and that such bond n.ay be sued or recovered upon tor the use o any person, or his legal representatives, who nn.y be injured by rea- son ft eseHng or giving away of intoxicating Ihiuors by the persons ,bLdnlng thelicc'e. Section « of the san.e act is. in its provismnjs like seetionl of the New York Statute. This section was repealed bj ch 179 Tiws of 1S74. Section 1.! of the latter act reads as follows: u (nv pei-son or persons who shall be injured in person, property or 1,:' ns of support: by or in conse.iuenee of the intoxication of any minor Hnibitual !lninkard, shall have a right of action '^-'^^^^ ^;:^^ his her or their name against any person or persons who have been not - ini. 'requested in wriUng by • ^ * the husband, wite, pai-ent- ives cnuirdians or persons having the care or custody of such muioi ; . abiuial drunkard not to part with IKptor or other intoxicating dnnk^ o them, and who, notwithstanding such notice and request shall Im. h g V sell or give away intoxicating liquors, thereby causing the in- oxk- tfon of such minor or habitual drunkard, and shall be liable for all dum;gS resulting th.-refrom. A married woman ^^^^ ^^^^^^ rb^ht !o bring suit and to control the same as a feme so^^ As to the c^ctof the"mendmenton causes M»en pending^see DiHon v -^ 30 Wis. :i44; Farrell v. Drees, Supreme Court of Wis., Feb. lerm, 18<7. •-'Ollev. Stats. 111., eh. 43, sec. 9: Iowa Code of 1873 sec. 1557; Kas. 1 ^M INTOXICATlN-»/'—■' t";^; spiritnons lienors, and was legally selhng them under that authority on the oceasion complained of, not as a detense, but in n'litigation of damages .« „ . • , Skc 4 Who Liable-Master and Servant-Prinapal and AqenL-TVo words "any person," as used m the statutes' are very broad, and end.race all persons makn>g the sale, without regard to their eapacity-whether owner son elerk, or servant.- With regard to the proprietor, m ihe'eonstruction of these statutes, the doctrine of agenc^s the liability of the master for the acts ot Ins servant m the «^ Granger v. Knipper, 2 Cin. 480; Ma.on v. Shay, 7 C. L. N. 152. 34 8 Alb. L. J. 13."). 3. Worley ''■^''^^^^^,, ,re liable in criminal prosecu- 33 Me. 490. As to the 3^'^^"^ f/^.^ '^'^J'.eer, 32 la. 405, and of th Mass. 144. fiiinily of his dissohito nwever, that the Ohio 0, «' contrary to the instrucd to authorize here the sale has heen iirrived at upon a cou- different times, and ; neither in accordance ;he decision of a court s instance, it has not id the intention of its A defendant may, it d been licensed to sell cllhig them under that d of, not as a defense, :d Servant— Principal •son," as used in the •c all persons making ,;i,.ity — whether owner, rd to the proprietor, in the doctrine of agency, ts of his servant in the V. Shay, 7 C. L. N. 152. e liable in criminal prosecn- >r, 33 la. 195. And assuming y will not exonerate one from messenger, as in transmitting the money from the buyer to the statute. Com. v. Wil- People, 3 West. M. Jur. 723. I him from selling in his shop 11. V. Tinkham, 14 Gray, 12. acts. Eoberts v. O'Connor, It in a social club, who deals [ercer, 32 la. 405, and of the i Ind. 21 ; Com. v. Smith, 102 INTOXICATING MQUOKS. lit I course of his employment, has been strictly applied. One engaged in the sale of intoxicating licpiors is held responsi- ble for the acts of his servants in that business, even though in the particular transaction they disobeyed his instructions. "' "No man," says Cooley, C. J., in a leading case under these statutes,'" " can l)e excused from responding for the nef this state," say the eoiui, *.;. well as l.v the common law, beer is rc-ogm/cl as pn.pertv, and "the l.vewinjr ofl.ecr is a lawfnl busmess The law protects this pn.perty precisely as .1 i.roteusals or private drinking, the lega respons.bd.ty o pay for its value would be the san.e. And .t wdl scarce- y le'disputed that, in this case, if defendant's staen.ens truthful, he nnght have recovered from the 1^- --y - value of the beer, on the same grounds prec.selj as he nihWit have recovered for any unlawful conversion ot other nropertv. But if defendant might lawfully recover tor the lonlerJion, he might, also, lawftdly settle t^,r .t. Ho dc^s not thereby sanction what was or.gmally done ; but he makes one who has done him a wrong compensate h,m toi ^']^rL nocessarv that the party selling should compel the purchaser t.. drink, or x.se auy art, device or tru-k, o cause him to l>ecomo intoxicated, or know that he would TFc%'"*r/*e Joint Liability of Several Sellers^-A seller of intoxicating liquors by which another is injured m per- son, propertv or means of support, is not released from ha- biliv if a part of the li.iucn-s causing the intoxication was ^i;; o^iirs. He is liable if he contributed to the result." INTOXICAriNC I.K.UOltS. 21 pic, iirt al)(»v(' stiitt'«l, on who, witliout the li(|U()r. and tliiit the vin<'' \>!iy for it ronld "•i.iiil tn-spiiss on his tate," say the coiu-t, ivv is recojrnized as j ^ a lawful business. ) I'lv as it protects any Voni the owner, ho is his own use in any [• from him tlic value. (1 in any dejrrce upon Tsion. Whether de- 1 etijcts, or made way lie legal responsiltility I. And it will scarce- fendant/s statement is •om the husband the lunds precisely as he ul conversion of other iwfuUy recover for the ;ettle for it. He does iinally done; but he \if compensate him for scHin- the intoxication was itribntcd to the result." intiiiu V. Diaper. 49 Incl. 441. Tills proceeds upon the well-settled principle, thai where a pcr.-on undeilakcs to do an unlawful act, which will re>ull in injury to another, and uses the means calcnlated to pro- .liice" sucharesidt,the fact that other persons may have been eniraged iu producin;! the same result will not exoui'rate him from the consetpn-nces of his act. From his usin<-- the means, the law presumes not oidy that he intended to pro- duce the result, l)Ut that the connnon intent which will create nuitual liability exists without proof of a previous ajrreemeiit, ov a connnon understanding, when tie meai\s employed Iciid to that infi-rence. Therefore, it v.ill not avail the defendant to show that others sold t'lc party li(|Uor which may have contributed to his intoxication.^'^ " If two persons willfully administer distinct portions to ^-"llacki'tt V. Snu'lsoy. 77 IU. 10!); Kinory v. AMU. »1 ('li. I.. N. ;«•'-• The rule in criminal ia doinj? wiiat is erindnal, another joins them btdore the crime is completetl. lie becomes Ruiity of the whole; because he contribut.'d to tlie restdt. But if. in these cases, there is no mutual understanding of each other's pur- pose, each who contributed to the result will be resiionsible simi)ly for what he personally meant. 1 Bishop on Crim. Law. (;;iO, Mi. Ho m11 joint tort-feasors are jointly liable where, in legal considenilion, the net complained of nnght have been connnitted by more than one, and a joint action may be brought against several for an assault and battery, or a malicious "prosecution. Tlie (luestion of tlie joint liability of several sellers of liquors, under the statutes, has generally been decided, wlien not specially enacted, upon the common-law principle governing the liability of joint tort-feasors. But it is submitted tliat the rule, as stated in the text, having regard to the result and the se[)aratiou of the dam- ages, is the correct one. The case of Stimev. Dickenson. :. Allen, •2!Mias been looked upon as settling the question. Nine dilVerent creditors wrongfully sued out writs against their debtor: i)laced tlicm in the hands of the same ofHeer, who arrested the debtor on all the writs at the same time; each creditor being igniu'ant of what the other was doing; it was held that they wei'e jointly or severally liable, though there was no pre- concerted .action. Bigelow, C. J., said: "As a nnitter of Hrst impres- sion, it would seem » * * they could not be regarded as co-tres- passers in the al)senee of proof of an intention to act together, or of knowledge that they were engaged in a common enteriirise. But a care- ful consideration of the nature of the action and of the wrong dor,- INTOXICATINd LIQUORS. 22 ll,,l m-Mm- ..fill.' l>"'-ti'- '■"" !"■ l"""-l"''l. """""" .„• n,, . ar ^'"^^^ > 3^.^,,., ,,. ,„o^vl...l«o l« not .•sBontlal to the co„wnlssi,.n o '^ '^'J *',7;;,, „, j,„t ,.. motlou „„., ,,„ ,11 ..ultml h. the V n.ngful ' • ' '' ^^ ,i "A h.-n jointly liahlo ,U.. .,on..y hy >vhH. It -^ — ^ ^ ^ *; :;:::;"eaLs haJ. heou cited to the iH-rson li.jurc.l. On th otlu i a ^ p^.„,„, n,,-,. n.c..tahllshln«ac..ntraryd..ctrnc. ''^^ '^j'';' j ;;^^ „,,. f,„„uJ in u .a. held, that ^;;:^^^:;%^:z';^;:^.^.u. .. ti. m. ciui.at.y .M.sagcd In kUlIng « »; J ' ' ,,.„re In this case, the trial conrt j„,v done hy »-•>- ^^;; :^ J^.I"':^,,l:;ie topayforanthd^ep Instructed the jury that t u tlet u between the tlrst of the plalntltr which '- ;;X^;" H '^/'^^^^^^^^^ a Contrary InBtrnction of July and the first of October. '» ' ^^ ^le for the injury done ..Ued l,y ^^^^^^^^!^-^J:r:>^^.:^::^iL^a J. charged by his own dog.' etc. .Tewett, •'•'^'^'" ilofendant the value ot that the plalntitV was entitled o ^««° ° «^,f;^. ^.^^^^^^ j, ^he case, they nil the sheep of the plaintlft w dch, f.on the cUOe^^^^^^^ ^^^^^^ ^^^ ^vere satisfied the J^'f^"^!'^"^^ ^^«S^'\^, i^^toj ird^S for any ^vas not accountable for such '^^^^l^'^J^^^^^^^^.'^f,,^^^^ his own." aan.age done the y^^^^^^^^l^Z^^ol tl.at separate own- To this and other cases of "^'^ '^^'';''^;'^^^'^;;^^^ , .,„.je, ..mtly committed by ev- are not at common law jointly lu.ble foi '»]""«« J*^' \ ^^^ transac- ;i..n- respective animals though ll^^^'XfoK; ^tdl^rcommltted tion. In such cases each 7'7^. "^ \^ ;;; /^^ erm^ it to run at bv his own animal, because of his "'^ '"•; ' 'jj^^^^^ ^, the ani- lurge. This neglect is the ground of the «;^ '"^ ? '7\"^\^^ „,,,^er. and n.aU are supposed to be under the ^^^l^^^^l^:"^ furtherance Uis negligence is distinct from hat of ^^^ ^^^^^^^^^^^ ,,,, ,„.„ng- of a conmion object, tliey can not be f^f ^ , ,' \^,„,,ges are not the *"^ ""^'^";f ?t^':rsr irr: -ri.:^^e::^of .. ow..rs direct result of tiie act. ^"^"^^^ '%" ^f such animals keep in the trespass. If, howev^.s '« ^^ ^^'^^^ ^J^ one herd or body, tliem in common. '"'^ /"f ^ Ti InmVes by the united trespasses of r.f:;':/t?ar£ r";^:.^, o,,. «. ■«, b... v. Watt, 27 Ohio St. J.V*. INTOXlCATINd I.iyl'OUH. 23 , will it 1)0 diiiincd lishctl, hcnuisi' the on a(lininist<'n'ade. To take an illustration. *» A, on tlie first day of January, sold a pmt ot whiskey to D, who paid for it ; D"s wife needed the money so expended, to buy bread. On the tenth of January B sold brandy to D, for which he paid the money; D"s wite re- .niired the money at the time to pay for meat to eat. On the twentieth of January C sold a (piart of whiskey to 1) and received payment, and D's wife needed the money to pur- chase raiment. On each occasion D became mtoxicated, und wasted so much of the plaintiff's means of support, a.s he expended money in the purchase of the li(iuor, and tune while so intoxicated. In such a case it might not be nnpos- sible to separate the damage resulting to the plamt.tl from the acts of each. But the case is very ditferent where suc- i-essive sales by several have produced a particular mtoxica- tion from whidi the injury sued for has resulted ; or where the damaiics result from the state or condition ot one, caused by repeated sales for a series of yearn. To state the rule i)f joint liability which should govern m this .lasr; of cases brietly: 1. If the defendant is the sole cause oi the intoxicaticm, he is lialde for all the damages resulting, 2. If some of the injury is caused l)y others, he is not liable for damages resulting from their sales. 3. But i1 the damages can not be separated, then he will be liabh for all injuries to which he has contributed. Where all are considered as joint wrong-doers, and eacl is liable for the injury done by all, all may be sued together „r one or any number of them separately ; but there can b, but one satisfaction for the injury.'^ A plaintiffcan collect bu 48 Kearney v. Fit/<>eri»ld (la.) . June Tenii. 1S70. 4!) Bovd V. AVatt, 27 Ohio St. 259 ; S. c, 3 Cent. L. J. 7oO. snKeiiruey V. Fitzgerald. Supreme Court of Iowa, not yet reported Emory v. Addis. 3 Oli. L. N, 330. lis. rs, no iiKiuiry is pos- iior whifh oauseel the ink from the etlbct of may undoubtedly be le made. To take an anuary, sold a pint of ife needed the money nth of January B sold money; D's wife re- or meat to eat. On the of Avhiskey to 1) and ed the money to pur- ) became intoxieated, i means of support, as )f the Tuiuor, and time it might not be impos- ir to the plaintitV from ■ry dirterent where suc- ■d a particular intoxica- has resulted ; or where i or ctmdition of one, L's of years. To state dd govern in this .-lass lit is the sole cause of the damages resulting. 1 l)y others, he is not their sales. 3. But if , then he will l)e liable •ibuted. wrong-doers, and each 1 may be sued together, rately ; but there can be fV plaintitfcan collect but 1. 1870. Cent. L. .J. 750. t of Iowa, not yet reported; INTOXICATING LIQUOKS. 25^ one sum, though f'cveral amounts maybe awarded him in dillerent actions. He is, however, entitled to tli^ costs in each suit.''^ But if he has prosecuted several jointly, and the jury has assessed a different sum as damages against eacli defendant, the plaintitf may enter judgment against all for any of the amounts as he elects. '- "on the othp'-'nmd, where each seller is liable for the injuries produced by himself only, settling with, or suing one, will not release the others.'^' The common-law doctrines, concerning the liability of tort-feasors, and as to the joinder or separation of them in aciions brought to recover damages for the wrong, are not allected by the new system of procedure introduced V)y the codes. '^ The question of misjoinder may be raised l>y demurrer, or the parties may apply for a severance. A neglect to demur does not waive this ol)jection ; as, untler the codes,— and in nearly all of tne states where this action is allowed, codes of procedure are in force,— the defendant may, at the trial, interpose the same objection to tlie plaintiff's recovery, though he has omitted to allege it on the record,''^ Whether re will be for the interest of a de- fendant, where several are joined, to obtain a severance, will depend upon the particular case. Though, as there can be but one satisfaction, it would seem to be to his interest to remain where he will have to assume but a share of tlie damages and costs. But it may happen that his connection with The injur}, to the plaintiff has been only slight, while that of his co-defendants may have been of such a nature as to sustain a claim for punitive or vindictive damages :— a claim which, under some circums" ices, as will be seen m a subsequent section, where the (piestion of damages is more fully considered, may be allowed. 51 romeroy on llenifdics. ;ill. .'••i First Xiit. Hiuik -. . Indiiinapolis. 4.") Ind. 3. •wjc'wett V. Wanshura. S Jli. L. N. :i-24. MPoiiH'roy on Reiiu'dios. ;i()7. M lb. 291; Jackson v. Brooking, 5 Hun, 5;«, and cases cited. 21> INTOXICATING LIQUORS. Sec. i\.--The Liability of Owners or Lessors of Prem- ises. These statutes also, as has been seen, give a right of action against the owner or lessor of the premises, where the sale Is made, severally or jointly with the person mak- ing- tlio sale, where the owner has leased or rented the property for such a purpose, or has kno\v ledge that intoxi- • catinjv li,i„ors are being sold therein.^' While the plaintitt mav "bring an action against the seller of liquors causing intoxication and daniaa;e alone, and having recovered judg- ment, by another action against the owner, enforce it, yet he has the riirht to join them in one acticm, and therein ob- tain complete relietV" And tlie judgment so recovered may be reversed as to one and affirmed as to the other.'^ This part of the law, however, does not apply to the owner of premises, who himself sells liquor therein. Tlierefore, where the owner sells in violation of the act, he is liable because of his sales, and not on account of his ownership of the premises in which the sales are made ; and to proceed against him, under this section, in such a case, would be improper.-^ What will amount to "knowingly permitting " or " sutlering " intoxicating liquors to be sold in violation of the statutes, on the part of a lessor of premises, who may have rented them for legal purposes, the lessee subsefiuently engaging in illegal sales, has been the subject of considerable discu.^sion. Must he not, it has been suggested, have a present absolute right to control the use, before he can ])e said to permit? Can permission exist without active participation in the control of the property? Can the law be construed as laying hold of the lessor as a hostage for the lawful behavior of his tenant, and hold him to knowingly permit, where he merely know- inL'ly suffers the unlawful act to be done by one who has exclusive control as against him and all the world? If •WBertholf v. O'Ueilly. S Hmi. !''• 5" Lu Franco v. Kiayer. 42 la. 14:{. M Rentier v. Lilly, 20 Ohio St. 48. •w Barnabv v. Wood. .50 Ind. 40.". INTOXICATING LIQUOUH. 27 r Lessors of Preni- seen, give a right of the premises, where rith the person mak- eased or rented the ;0\v ledge that intoxi- While the phiintitt I- of liquors causing ving recovered judg- vvner, enforce it, yet tion, and therein ob- ent so recovered may the other.'^ es not apply to the ;ells liquor therein, jlation of the act, he )t on account of his e sales are made ; and iction, in such a case, lount to "knowingly ing li(iuors to be sold part of a lessor of ■or legal purposes, the il sales, has been the Must he not, it has )lute right to control niit ? Can permission 1 the control of the as laying hold of the ehavior of his tenant, here he merely know- done by one who has lid all the world? If obliged to resort to law for an injunction to restrain or to compel a forfeiture, the breach of duty being of conditions subsequent, will not the very law which exacts a resort to it, apply the strictest rules to the lessor's case, and estop him from a remedy upon the slightest grounds of acquiescence, such as once accepting rent after having reasonable grounds to believe in the existence of the unlawtul user, or deny him relief, except upon proof beyond a reasonable doubt ?«" It is, we apprehend, a sufficient answer to this objection to say that the owner is entirely protected, under the very sections of the statutes creating his liability, by the forfeit- ure which ensues upon the sales being made by the tenant. He is not recpiired to move until the forfeiture is complete, and he will not be held liable unless he does some aitirma- tive act signifying his assent to the use of his property for such purposes, or his permission for its continuance. ''^ Mere inactivity on his part to find out the tact, or a failure to take steps to prevent such a use of the premises, will not render him liable.**'' The permission to occupy the premises, with knowledge that intoxicating liquors are to be sold therein, constitutes the basis of the liability imposed by the act. Neither the permission nor the knowledge is to be presumed or inferred, but should be established l)y clear and satisfiictory proof. It is doubted whether, considering the relations of the parties, the occupation, by the husband, of premises belonging to his wife, where he and she reside, is such a permission to occupy as would make her liable under the statute. And it has been held that from the mere fact that the wife, the owner of the premises, lived with her husband in a hotel, it could not be inferred that she had knowledge that intoxicating liquors were sold therein, it not being proved that she ever witnessed a sale, or had ever been present in the bar-room where the sdes were made, or had ever given her consent that such sale 60 Granger v. Knipper, 1 Cin. (S. C.) 480. 61 State V. BalUngall, 42 la. 87. 6'^ State V. Abraham, 6 la. 117. I- A- 28 INTOXICATING LIQIJOUS. !^h()ul(l be made, or that i^lu" was inlbniiod that thoy wi'iv ill fact inado, or of any circumstances tending to induce such an inference.'"' But general reputation of the phice being used for the purpose of selling spirituous li(|Uors is admissible on the tiuestion of the defendant's knowledge."^ Where it was proved that the defendant by a written lease let a building to one F for the sale of licpior, on an under- standing that F was to occupy it for that purpose, and F did occupy it for that purpose, it was held that such facts would sustain an allegation of " suifering " the premises to be occupied for the purposes named, as well as an alle- gation of " letting " for a like purpose."* Again, a landlord certainly has power to prevent the use, by his lessee, of his property for illegal purposes, as he has power to restrain the use of his property for a purpose diUcrcnt from that for which it was leased, or for a purpose which may render it dangerous, '« and this on general prin- ciples, without regard to the statutory provisions which declare a forfeiture, and, in one case, expressly empower the court to enjoin this particular use of property."' And where a landlord seeks to avoid a lease for a violation of the act on these grounds, the defendant can not prevent such avoidance by showing a payment of rent for the entire term.*^ The Ohio law provides that all contracts, Avhereby any building or premises shall be rented and leased, and used or occupied in whole or in part for the sale of intoxi- cating liquors, shall be void, and the person renting or leasing the premises shall, upon such a sale taking place, be considered and held to be in possession of the prcm- The existence of two conditions is necessary to ises. (i8 render a contract void under this statute. The building «i Mciul v. Stratton. S lliin, 151. <^< State V. Shanalian. .'4 X. II. 4;57. >»■> Bonnet V. Sa.Uer. 1-1 Vo.<. 'rH<\ -Mayor v. Bolt. 5 Ves. 120. <" Micti. Stats., nitjifii. <^ .McGarvcy v. Pmketl, 27 Ohio St. CG9. "'^(Jhio Law. supra. \ INTOXICATING LIQIJOIIS. 2!) nod tlmt tlioy wt'ic tcMidlng to iiuluce tation of the place ipirituous li(|Uors is idaiit's knowlcdjro."^ t by a written lease liquor, on an undov- hat purpose, and F lield that such facts i-ing" the premises I, as well as an alle- le f to prevent the use, gal purposes, as he operty for a purpose sed, or for a purpose this on general prin- ry provisions which expressly eni[)ower of property."' And for a violation of the an not prevent such for the entire term.'^ iitracts, whereby any ind leased, and used • the sale of intoxi- e person renting or a sale taking place, session of the preni- ions is necessary to te. 1. The building jlt. 5 Yes. 120. or premises must have been rented or leased for the sale of intoxicating liquors. 2. The leased property must 1)6 used or occupied for that purpose. The mere use or occu- pation of the property by the tenant for the purpose indi- cated is not enough ; it must have been contemplated at the time of the making of the lease. Neither is it sutH- cient, that such a use of the lease was contemplated at the making of the contract by the tenant; it must have been known to the lessor. From its wording, the meaning of the statute is very ambiguous ; but, as used in this section, the lessor is the actor, and it h the lessor, and not the lessee, who is " to be considered and held to be in possession," on and after the sale.'" The dillerence be- tween this section and the sections contained in the several aits, in relation to forfeitures is, that in the other cases the use of the premises by the tenant for the sale of intoxica- ting liquors renders the lease void at the election of the lessor, while in this the lease becomes void as to both parties .^^ The word "premises," as used in the statutes, includes lands and tenements. Therefore, a justice of the peace in most of the states would not have jurisdiction in an action against the owner or lessee of premises, who knowingly permits li(iuor to be sold therein, wherel)y injury is sus- tained, such an action being one in which the title io real estate is drawn in (luestion.'- If the sale be nuide upon any portion of the property leased, it works a forfeiture of the whole. Therefore where the act which it was claimed forfeited the lease was committed in a grocery store upon the property leased, judgment was held to be properly ren- dered by the restitution of the whole premises of 350 acres.'" The provisions of the statutes declaring thtit real estate not owned by the seller, but wherein the sale is made, shall ToZink V. Grant. 25 Ohio St. ;t.V.J. 'i.Tnstice V. Lowts 20 Oliio St. ;57;J. ii'^ Bowers v. Poiuevoy, 21 Oliio St. 184. ■■JMcGiu-vey V. Pufkett, 27 Ohio St. 072. \ 80 INTOXICATING LIQUORS. 1,1. hold liable for tho payment of a judgment against mm, do not create a lien upon the property, but simply author- ize it to be subjected to the payment of the judgment in a suit acniinst the owner, instituted for that purpose. Until the commencement of a suit against him, the judgment creditor aeciuires no interest in the property ; and it bctore the suit is brought it has been sold and conveyed, it can not be subiectvd to the payment of such a judgment. To con- strue the statutes, so as to make a judgment against the seller a lien on the pr..p*"rty, either from the rendition of the judgment against the seller of the liquor, or from the time the action accrued, would render titles to land very in«^ecure. No on<' could safely purchase real estate on the taith of the records showing that it was free from incum- brances. He would be obliged to search for the previous occupiers of the property, and to ascertain whether any judgments or causes of action existed against them while in possession .'^ The statutes of Illinois, Iowa, Kansas, Michigan, New York Ohio and Wisconsin, give a right of action for three separate descriptions of injury caused by the sale of intox- icating liquors, viz. : Injury to the person, to property, and to means of support. Sec 7. Injuries to the Person.— To sustain the action for injuries to the person, an assault, or some actual vio- lence, or phvsical injury to the person, or health, must be shown.''* So, where the plaintiff charged that in conse- 74 Bi'lliuger v. Griffith. 23 Ohio St. C19. 'SMulford V. Clewell. 21 OliioSt. 193. Uader a iatute of Missouri, mailing it a ground for divorce at the sn t of a vSe. if the husband shall " offer such indignities to her person as to render hr life and condition intolerable and burdensome," it was he d, fn Cheatham v. Cheatham, 10 Mo. 296, overruling Le^yls v. Lewis o Mo 278 that xmfounded charges made and repeated against a wife by her S>!b'ndVcllc«lated to render her life -^-f^^^^'^'^^Zl^Xf^^t ^•oundforthe in-anting of a decree. "If mere words, say the couit, ^:m ton tttute'the indignities to the Pe-n -""r^^iT^^ by what standard of refinement shall the offended sensibilities of the ^tM INTOXICATING LIQIOUS. .'.1 ;ment against him, but simply author- tho judgment in a at puvpose. Until lim, the judgment orty ; and it* l)cfoi'e jonvcyt'd, it can not ndgment. To con- dgmcnt against the nn the rendition of liquor, or from the titles to land very [> real estate on the as free from incum- i-ch for the previous ■ertain whether any gainst them while in sas, ISIifhigan, New it of action for three by the sale of intox- ion, to property, and o sustain the action or some actual vio- 1, or health, must V)e irjred that in conse- Lind for divorce at the s\iit gnities to her person as to mrdensome," it was held, ing Lew-is v. Lewis, 5 Mo. ted against a wife by her able, were not a sufficient ere words," say the court, mentioned by the statute, rended sensibilities of the (,uenco of his intoxication her husband at times became delirious, wild and dangerous, compelling her to nurse and attend him, and that she had been put to much fear, and had been forced to abandon his house on account of his bad conduct and disagreeable society, but complained of no actual violence, it was helu that the action could not be sus- tained for injurv to her person. ' ' Mortitication and sorrow and loss of her'husband's society is not enough. This is her misfortune, for which she has no remedy under the law. If she had been attacked by her drunken husband and iniured by his violence, she could recover."'" But under the Wisconsin statute, where the husband, while intoxi- cated, without actual violence, l)ut by threats and a})usive language and intimidation, drove his wife out of his house, and^kept her out for several hours, it was held that this constituted a physical injury and sutfering sufhcient to sus- tain an action.'" ^^ Sec. 8. Injuries to Property .—'Vhe term " property, as used in these statutes, renuires no special construction. Damages caused through the scjuandering of the money or chattels of a wife, or other person,'^ or the value ot the property destroyed by a person while intoxicated, may be recovered under this section from the seller of the litpior causing the intoxication.™ Unlawfully depriving a person of his money or other property, upon general prmciples, creates a right of action in favor of the party injured, and these principles apply equally to the case of one obtamnig female be estimated? Natural temperament, education and the assoda- lions of life will very much vary the degree of unhappiness and discom- fort, which reproaches of this character would be hke ly to produce If words, unaccompanied with actual violence, constituted the charge they must have been such as to inflict indignity and '^''■'^''''^'^''\^]'^\?- duce a reasonable apprehension of injury to the person or health ot the nartv coniDlaining." Hooper v. Hooper, 19 Mo. .^5.5. ^I^MuZd V Clewell, 21 Ohio St. 193; Albrecht v. Walker. Supreme Court of Illinois, not yet reported. "Peterson v. Knoble, 35 Wis. 80; Wightman v. Severe, 33 \V,.. .0 78 Mulford v. Clewell, 21 Ohio St. 197 ; Henimes v. Bentley, 32 Mith. SO. T9 Woolheather v. Risley, 38 la. 187. 1 82 INTOXICATINO LUn^OIlft. tho monov c,f another by the unhiwful sale of intoxu-atinir liMUors. Tliercforc a party may sue tor money paid dur- in.r a period of time for linuor sold to him in violation ot the'^o statutes. And the same right exists ui tavor ot his personal representatives, it being an injury to the estate ot the intestate of a proprietary character, as distinguished from a mere personal injury .-• No demand of the chattels, or notice of chiim, is necessary before the suit can bo hrou.dit. An action of this kind ditVers from an ordinary action for conversion of property ; for it is not brought for the vendee's inversion, l)ut for the act of the party making away with the property while under intoxication ettected by the defendant. The wrongful act for which suit is brought i. not the conversion of the property, but the sale ot the liquor "• And where a wife sues the vendor of liquors for the value of property belonging to her, which has been made away with by her husband, while under the inHuence of Ihiuor supplied by the defendant ; if, as between the plaintitf and the husband, the property was hers, whether it would have been hers as to creditors or a purchaser from her husband in possessh.n, is not material ; for the defend- ant in such a proceeding does not occupy either of these relations.'^^ Where the phiintitT's son took his horse, saying that he was going to visit a friend some miles distant, but instead of this went directly to the saloon of one ot the defendants, where he became intoxicated, and while in such condition afterwards drove the horse so violently that it died ; it was held, under the New York statute, that an action could be maintained against the saloon-keeper and the landlord of the premises jointly for the value ot the horse.*' And an action may be maintained by a person prevented from following his usual occupation liy being struck, beaten or wounded by an intoxicated person, agamst s" Kilborn V. Coe. 48 How. (N. Y.) 141. SI Mulford v. Clewcll. sHpr«. 8-2 WooUieatlRM- v. Risley. supra. ssBoitholf V. O'Koilly. 8 Hun. II). ^^ IXTCXKATINU My whirli the intoxication was produced, and the owner of the building in which it was Six-. St. Injuries to M('(nif> of Support— Rights of \\ {te. —The term " means of support." as used in the statutes under consideration, has received a ditlerent interpretation hy ditlerent courts. The wife is the person whose damage iii most cases is laid under these words, and a statement of the application and extent of the term re.|uires an exami- nation of the rights of a wife, under the law, to the support of her husl)and. Ib-oadly. the phrase as used in the stat- utes relates to whatever a husband might have earned or made by his labor and attention to business, and con- tributed' to the maintenance of his tamily."** A husband is morally and legally bomul to supply his family with tho necessaries and comforts of life. If he have no other resources, it is his duty to contribute his labor and its pro- ceeds to their support.' A wife has thus an interest in his cai)acity to labor, and this especially, if she be wholly dependent. Therefore, his intoxication of itself, as affect- in"- his capacity to laljor, gives her a cause of action.**^ Nor is the liability of the defendant confined to cases of injury resulting immediately from drunkenness, or arising during its continuance ; it extends as well where the injury results from insanity or sickness produced by intoxication.^^ Health is as indispensable to the ability to labor, as is the ability to lal)or to means of support. To sustain the action by the wife, it is not necessary that she has actually been without support, or at any time in whole or in part deprived of support. Means of supixnt relate to the future as well as to the present. It is sutficient if the sources of her future maintenance have been stopped or diminished below what is reasonable for one in her station >^Enr do we ^^^-g"!^^ " courts the right to amuil it. The right ot support us not limited to the supplying of the ''/^''^ "^^^^f ^^,;;f^^fj'/ but embraces comforts that are suitable to the wite s t- uation and the husband's condition in f • «--- ^ wife mav be able-bodied and can earn a livelihood, it does not follow that she does not suffer injury in means of sup- ort by loss of her legal supporter. Nor does it so follow where she may have independent means of her own. There are always independent means of support. No one is absolutely dependent on another for means ot support; f^ wherthere \s the absence of other means, it is provided l>y' public authority.'- But in a Wisconsm case it is intimated that, if the husband when sober was I>hP^<,*» y ncapable of performing any work or labor, or attendii^ o any business, or was of such indolent oyl^f^l^-.^^ f^^^ that he in fact made his wife support him, his -to^-f -" would not injure her means of support, as used m the 88 Mulford V. Clewell, sujwa. wWoollicather v. Blsley, 38 la. 189. 90 Hackett v. Sim-lsley, 77 111. 100. ourt below t<» clmrgo I no worse condition ors to hor hn.shiind, red in her means of ," was held correct/'-' judge, in rejecting an , that if the wife had maint in herself as her husband before le and competent to t maintain the action, The Supreme Court le law, there has been upport his wife. No Ml this cause of action '. It has never been ,r do we recognize in iht of support is not re necessaries of life, ible to the wife's sit- in life. Because the n a livelihood, it does ijury in means of sup- Nor does it so follow means of her own. s of support. No one for means of auppoi-t ; jr means, it is provided Wisconsin case it is I sober was physically or labor, or attending jlent or shiftless habits i-t him, his intoxication upport, as used in the INTOXICATIXtJ I-IQIOKS. 35 statute.''" And in New York, the exposition of this phrase in all the other states has been entirely dissented from. The Supreme Court of that state, in one case, say, that the reasoning adopted in the other states, " if carried out consistently, would result in the tloctrine that the wife has an interest in the property of her husband, so that she could maintain an action for its injury, as ho is as much bound to support her out of his property as out of his waiTcs : and that a creditor would l)e injured in his means of support by the intoxication of his debtor, for the debtor is as much legally and morally I)ound to pay his creditors as to support liis'wife." ''^ This extraordinary ruling stands alone, and seems to have been made without any regard to the obvious intent of the framers of these laws. But leaving this out of the (piestion, it would certainly seem a sufficient answer to it, that in the same section the wife is authorized to bring an action for injury to her property, and that even at common law sh(3 may maintain a suit for an injury to her contingent interest in her husband's estate, thouo-h an interest which is not an actual one, but which the law considers as more than a possibility.*' The fact that the wife is specifically mentioned in the statute, and the creditor is not, makes it unnecessary to consider whether legally their rights are precisely the same. An examina- tion of this case shows, however, that the expression just quoted is more in the nature of a dictum than a judicial decision ; and it may be considered as settled under this section, wherever it is found in the statutes of the states which have adopted the civil damage law, that the wages of the husband are part of the wife's means of support, in that they belong to her for that object ; that a diminution of them from the causes stated will give her a right of action, and that having the right to rely upon the support of her hus- band, his previous conduct, except under extraordinary 91 Wightninii v. Devere, supra. M Hayes v. Phelan. 4 Hun, 738. 33 Billiard v. Briggs, 7 Pick. 533; Biizlck v. Buzlck, 3 Cent. L. J. 786. 30 INTOXICATINO LUn'OHP. „„.„„8. ,vill nnt ..Iter tho ™.o. It bi» l.i.on hoW, l,o«.v , lawfully fm'.u»hinfr sl.iritm,,,., li.|U...-» .•...l«m».l.lo t... n,ju- r r Suiting tl,crrfn„n, m.d giv.. u vomo-lv to any ,.«•»..„ ZZm »uth injurcl pe«„,. n,„y l.e .le,,<„Hl>...t lor me„„» .,„t, tha, thi» a,.,, ,u,t ,ive o„o u,,onw ,o,n a ,,o™m l,e„, m... cU-iH.,,.!.,.,. in ••uns..,"-"- "f intox.caUou pro.!...-, d hXorJ fuvnishca, ami wlu, wa, not previously d-pon,!- eiit upon him, uny right of action.'^ A^' "tion ivill lie, at the suit of a wife or ch.lcl, agmnst the e ler of U.,uors to one .vho while so in ..x.catecl, ml u con.e.,uVnce of svu-h intoxication, receiven .nju- V ulting in death - In one of the earliest cases c le- w null the New York statute, a contrary con.-lu- :r;:: rc:ta: T^re the complaint ,aiege.l t.at nlaintitf's hushancl died early on the niornnig ot the otl o J V that he was intoxicated on the even.ng prev ou. th^ hi death was eaused by such intoxicatmn producecl .vtho sale to him and others of intox.catmg liquor, S.. !bv m aivav took place in which he was killed by one r his drunken companions, and that the plau.Utf by ^^ hereof had sustained damages in being deprived ot the «nn"ani.,nsh^^^ of her husband, and of the eus omary su - Z and mafnteuance of herself and her children. The court held that this did not show any cause of ^^^icn ; jit e intent of the statute was to throw the responsib.hty br he injurious a.ts of an intoxicated person on the vendor Oliver of the intoxicathig liquor, but not to make ;^ able for all results .vising therefrom, and that under r tatute a ri.^ht of n<^lc>n existed against the donor or ^n^t^L'Ilone when, it would lie against^the intox- ■caTed person- But 0.. .inrn^n. may he s^d to oo o.^- ^Holllsv. Davis, 50 N. H. 74 . ^^^ ,33. 111.), not yet reported; Mason v. Shay, 7 Ch. L. >. Ui- 'J« llayes V. Phelan. 4 Hun. 743. INTOXUATIXCt LUiL'OUH. 37 lor of iiubM^t'"'!**"*^ n'cii hoUl, liowi'viT, inaki'sii person un- •Hponsiblo for inju- mody to any person >pendont for meiins ipon whom ii person toxiciition protluct'd previously depend- v\i'ii or child, ivgainst hilc so intoxioiited, tion, receives inju- le earliest eases de- a contrary concUi- iplaint alleged that lorning of the 5th of evening previous : itoxication, produced intoxicating liquor, he was killed by one ho plaintiff by reason sing deprived of the if the customary sup- 1 her children. The cause of action ; that •o\v the responsibility 3:ited person on the [juor, but not to make efrom, and that under against the donor or lie against the intox- ay be said to oo over- n V. Brooking, 5 Ilun, 533 ; (It V. Mitchell (Sup. Court L. N. 152. '1 ruled i>y a later rase in the same court, wlu re several per- ilous became intoxicated and engaged in a drunken atlVay, in winch one of their number was killed, and an action was brou.'ht against the sellers of the liquors which caused their intoxication. Tiie opinion of the <'oui-t in this case is an excellent exposition of the meaning mm.I purposes of these statutes. " It is true," says the ceurt, " the statute does not in express terms give the right of action upon the .•luise of death. It docs not dcHnc the injuries meant to 1,1. covered, or enumerate them. It says, generally, ' inju- ries to person, property or means of support, in conse- .[uence of the intoxication of any person.' If death en- sues, as the natural and legitimate result of the intoxica- tion, it is covered by the language of the statute. All iniuries are covered that are consequent upon the intoxica- tii.n If death were excluded, then the minor and tem- porary injuries would be provided for, while the greatest and most permanent of all would be excluded. The statute should not be so construed. It admits of the other con- struction, and that is more consonant with its benign purposes. Its nuiin object was to provide a remedy for cases before remediless. Had it been contined to injuries to person and property, it might have been said, that only those injuries were meant to be covered, for which there was before then a remedy against the intoxicated person. But when it provided for injuries to means of support, it made actionable a new class of injuries without remedy at common law, and unprovided for by any previous statute. The wrong consisted in the fact that the sellers of liquors shut their eyes to the condition, in person or family, of those to whom they sold. They dealt out an article which, under certain circumstances often liable to exist and to be known to the seller, would, without fail, produce injury, and perhaps death. Carelessness and neglect, morally criminal, were shielded under the license law. For this ^yTong, the statute under condderation provided a remedy. Notice the class of persons especially endowed with a right of action ; 3g INTOXICATING LIQUORS. -husband, wife, ohikl, parent, guardian. When iiie stat- ute provided that anv of them might have a right of action for any injnvy to his or her means of support, m conse- nnence of the intoxication of any one, is it reasonable that the legishxture only meant to provide f.r such causes of action, as before then already existed against the intoxicated person V It seems not; but that the main object was to provide a remedy for an evil entirely without remedy l^efore. The law does not provide how the injury to the means of support must be produced in order to be action- able, when it is in consequence ot^ intoxication. It is therefore without limit in that respect.""' The fact of the marriage being illegal and void, it proved, will prevent the plaintiff from recovering for mjuiy to means of support, but will not deprive her ot the right to maintain an action against the seller of mtoxicating li.puns to her alleged husband, if she shall have sustained injuries to her person or property by reason thereof. ^ Sec 10. Actncd and Exemplary Damages.— The statxites avthorize the recoverv of damages co-extensive with the ^^"and likewise exemplary damages. But it is wel se tkc that exemplary damages can not be awarded without ^roof of actual injury; the seller can not be pu-l-J ; even if he has sold in violation of the wishes ot the frieiKh and family of the drunkard, unless the party '>™g";g - has sustained an actual and substantial loss.- But if u a ■ nenr that a wife has sustained actual damages to her meani of up ort,excmplary damage prool- of aggravating circumstances, such as the detcMidant ?urni.hing\he husband with liquor after notice from her no .^G 3 "Perkfns. 30 Mich. 405; Wightnian v. Devere 3 n. o7 ; u » -o 111 T«- Rotli V. Eppv, 16 Am. L. R. HI, treese Keedy v. Ho.ve. .9 ^ ;^.^-^^; f ^'^^^^^ bent. L. J. 756; Kellenn..n ^ T"''^l\ -?ni 632- BnnUganv.Waite. Blanke et al. v. Fulforcl. a„ . iu;;'cM V. Wallfi SSa m U. supreme Court of Blinoi. and n, yet reported. lian. When the stat- have a right of action of support, in conse- I, is it reasonable that le f'.r such causes of itrainst the intoxicated e main object was to ively without remedy how the injury to the in order to be action- if intoxication. It is ral and void, if proved, overing for injury to ive her of the right to of intoxicating li(iu()rs have sustained injuries thereof.'^^ images.— The statutes co-extensive svith the mages. But it is well not be awarded without can not be punished, je Avishes of the friends the party bringing suit tial loss.'^ But if It ap- l damages to her means )e awarded even without such as the defendants ifter notice from her not of Iowa, not yet reported. \tman v. Devere, 33 Wis. 570; , 16 Am. L. R. Ill ; Freese v. Cent. L. J. 756; Kellerm.in v. Jlanke et al. v. Fulford. and me Court of Illinois, and not INTOXICATING LIQUORS. 39 to do so, or endeavoring to prevent him from reforming by tempting or inducing him to drink intoxicating liciuors.^"* But thefoct of the wife having notiiied the seller not to sell to her husband should always enl,;uice the damages ;i"' for he can in such a case have no excuse for his conduct, and his disrcL'ard of the law and of the rights of others may weU merit the award of punitive damages. In a recent case,!""^ in speaking of exemplary damages, it was said, where a seller of intoxicating crinks had been notified not to sell in a particular case, or where he placed temptations in the way of one to seduce him from the paths of sobriety, or where one, who had been an habitual drunkard, was endeavoring to reform and free himself from the toils in which he had been bound, if he should be interfered with by the dram- seller, to conquer his resolution, such a person would be a fit subject for exemplary dauages, and such damages, so awarded, would be in the nature of compensation to the injured party. And though, as has been seen,^«' anguish of mind and mental suflering do not constitute such an injury as to be the ground for an action under these statutes, yet actual damages being proved, they may be taken into considera- tion upon the question of exemplary damages. ^^'^ " ^\ hat- ever may be the rules of the common law," it is said m an Ohio case, " as to the state of tacts necessary to justify the assessment of exemplary damages, it is clear that exem- plary damages may be recovered in any action brought under this'section, in which the evidence shows a right to recover actual damages." i»* And in the same state an action was brought under the act of 1854 by several railroad con- tractors who had in their employ a number of hired hands, for the sale to them by the defendants of intoxicating liquors, ' whereby they became drunk, unable themselves lOOHackett v. Sinelsley, 77 111. 109. 101 McEvoy V. Humphrey, 77 111. 388. 102 Kellermanv. Arnold, 74 ill. 632. 103 Ante, Injuries to the Person, See. 7. iMFreese v. Tripp, supra ; Both v. Eppy, supra. 105 Schneider v. Hosier, 21 Ohio St. 98. 40 INTOXICATING LIQUORS. t.. work, prevented the other hands and teams from work- in. to advantage, and the progress of the .lob was knd led and was ^ogal, thus ,,„;i,vin- thi- soUer liable t(. a mniinal prosoout.on, he ,.uia not bepunishod with vindictive damng.-s n. a cn:.lac- tirni"^ But it has been since held that the act ot 1873 has 'expres.lv abrogated this rule.™ In Illinois, on proo of iUclal sales, exen.plary dan,ages n,ay be re-c^ered^ The statutes provi.ling that any person who shall be m nn-ed in person, property or nu-ans of support m conse- Znce o the intoxication, habitual or otherwise, ot any ^1, shall have a right of action, it would seen. t.> re,jure in extraordinary interpretation to hold that the deteud u^^ i>. not responsible for all conseciuences ansnig trom he s. le .,f intoxicating li.,uors, but only for consequem^s which he „ ,v be presmned to have foreseen as likely to be the result f his sis. Yet, in a recent Indiana case,- where a hu. l„,a Leeanie grossly intoxicated from liquor sold to hnn by Uotcndant, ainl while being hauled home jn J-^^n - this state, received injuries from a barrel <>f f \/'^""f ,n him trom which injuries he died, it was held hat h.s ^idow had no right of action under the st..tute the <^h o the husband being the immediate, and the .ntoxication ot the husband onlv the remote cause of the injury to her. In support of this view the court say: " The defendants, :.ai!ngtlie intoxicati.m ^f the deceased, could no^^ anticiiMited that, on his way home, he would be f tally i^od bv the salt barrel. This was an extnu.rdniary and fortuitous event, not naturally resulting trom the mtox ieation. Suppose, by way of illustration, that a person, by n3 8 AH). L. .T. 337. iHRoth V. Eppj'. stipra- iisStruble V. NotVwift. 11 liul.G."). no Si'hafer v. Smith. 4 Cent. I-. J. 271. 117 Ma.on V. Shay, 7 C)i. L. N. 152. Worcester, 4 iisKraeh v.nenman.4 Cent. L. J. 23^, cum? . la 35 N. Y. Grav. 395 ; Crain v. Petrie, C Hill, 522 ; Ryan v. > . \ . C R. R-. 3o > . Y . 210 • Fairbanks v. Kerr, 70 Tenn. 8G. INTOXICATINO LIQlTC RS. 43 town."'' But such In Indiana, in an iili> was iU('jj;al, thus nal prosecution, he ini:ii:cs in a civil ac- lat the act of 1873 In Illinois, on proof nay he recovered."' son who sliall 1)C in- i siipport, in conse- ,r otherwise, of any ,'ould seem to require d that the defendant arising from the sale inse(iucnces which he likely to be the result I case,"* where a hus- liquor sold to him by ome in his wagon in barrel of salt fulling :I, it was held that his le statute, the death of id the intoxication of of the injury to her. iv : " The defendants, •eased, could not have he would be fatally was an extraordinary sidting from the intox- tion, that a person, by ting Marble v. Worcester, 4 L V. >'. Y. C. R. K.. 35 N. Y. reason of intoxication, lies doAvn under a tree, and a storm blows a liml> down upon him and kills him, or that ligiit- ninir strikes the tree and kills him ; could it be said, in a U'gal sense, that his death was caused by intoxication? In the chain of causation, the intoxication may have been the remote cause of his death, because, if he had not been in- toxicated, he would not have placed himself in that i)osition, and therefore would not have been struck by the limb or lightning. In the case supposed it maybe assumed as clear, that the parties causing the intoxication would not be liable under the statute to the widow, as for an injury to her caused l)y the intoxication of the deceased. Yet there is no substantial difference between the case supposed and the real case here." It is likely that, on the general principles applicable to such a case, the conclusion reached by this com-t is correct ; for, to make the defendant liable, it is not enough to say, that as the injury would not have occurred hut for his net ni selling the li(iuor, and thereby intoxicating the person who was killed, therefore the defendant is re- sponsi})le ; for he can only be held liable where his act, in the absence of any independent intervening agency, would be likely to be followx'd by an injury to another. But a fair construction of the statute, and the intent of its framei-s, woidd seem to justify the adoption of a different rule in this peculiar class of cases. Such has been the tendency of the courts generally."^ The Supreme Court of Indiana, in a still more recent case,i™ has applied the same rule to the case of one who, while intoxicated, was run over and killed by a train of cars. The death of the person (the husband of the plaint- iff in the case referred to), caused by the train of cars, the court say, " is an effect which is not naturally, necessa- rily, or even probably connected with the fact of unlawfully selling intoxicating liquors to him by the defendant, "9 See Both v. Eppy, 16 Am. L. E. Ill; Schmidt v. MitcheU. Supreme Conn of Illinois, not yet reported; Emory v. Addis, 6 Ch. L. N. 33G. J2«Callier v. Early, 4 Cent, L. J. 40G; Monthly Jurist, May, 1877. ^^ INTOXICATING LIQUOUS. wherebv he beoaino drunk : un.l when the death oouhl take .0 milv upon the e.inei.lenee of his .steppn.g on the P k and the train passing at the san.e tnne. the eon.^ "L becomes more remote and n.ore diseonneeted with r eause alleged. The death need not take place nnne- iatelv and diiietly upon the eause, but it must be erteet d ,v a"ehain of natural erteots and causes, unchanged bv •„:: action ; ov the party who committed the rst aet^ wd not be respousible. In this case, the running ot tlie tiam c s was the human action, which changed the course o 1 ^1 enacts and causes connected with the act alleged ::^ the defendant. * * * '^'^^ »^^f "^if ^ '"^'l^ ^'.s killed by the train of cars, and not by the ac ot the .;^, ^ i/«nlawfullv selling him intoxicating buuor t ■ r.' le upon the Ohio liquor law, published m the Lava.y .urist ior May, 1877, and which ^ ^^l^^ <..v notice since this review went to press, the J^^^on of the ' liav.^ 'Urt in these two cases ,s very ^^^h a ti- cLd "It se.u.« apparent," says the writer, " tlmt a .doon keeper, in selling intoxicating liquor, must eontem- ptthat the person buying the same may, and even prob- ndv will, if he becomes intoxicated, be hurt by some one oi 1 'man; instruments of danger found in cities ami o.ni where liquors are sold. Stripped of his reason and he u.e o is limbs, what is more natural or probable than that the nlr^ aser w 11 meet injurv or deathV Just how he may be ^":X^ what train, ^r in what place-the saloon keeper ^^^Ja not tell; but that injury will probably beta h m, the seller must contemplate. So if one -Us hquo to another by which he becomes intoxicated, and the sel ei Tn plaeel him in a wagon, with another drunken man tor . d iver, is it not probable that an accident will happen to themv A wrong-doer is lial,le for the natural, iiecess.vr> J^ even probable consequences of his acts. The inten ion of the lejslature in passing this law seems to have been pro.Hde for cases like these, and give a remedy where nom ex^ed. Prior to the adoption of this law, a wite wa. INTOXKATINU L1QUOR8. 45 110 death roultl take lis st<'pi>injr «>n the iii> tiln«^ the <'()nsi'- re (liscoiuKK'tcd with lot tako plat-f iimuo- t it must 1)0 effooted uses, unchaufjed by tted the tirst act will [•unniuir of the train hanged the course of with the act alleged plaintiff's husband not by the act of the intoxicating liquor." law, published in the hich has come under 1 press, the decision less is very ably criti- the writer, "that a liquor, must contem- e may, and even prob- le hurt by some one of id in cities and towns his reason and the use probable than that the Just how he may be ac(. — the saloon keeper i-y will probably befall jo if one sells liquor to xicated, and the seller other drunken man for iccident will happen to the natural, necessary lis acts. The intention ; seems to have been to e a remedy where none f this law, a wife was without a remedy, if her husband became intoxicated and was killed by the i-ars. On account of the deceased being drunk, she could not recover in an action against the rail- road company. It was clearly the intention of the legisla- ture to apply the law to cases like these ; and to do so, re- (|uires no extension of the act by judicial constructicm." In dismissing this phase of the subject, it may be sutficient to say, that in no other state where these statutes exist has such a narrow construction been placed upon their provi- sions, (u- such an apparent attempt been made to defeat the wholesome remedy which their framers have endeavored to give. Sec. 11. Pleading— Limitation. — The action under these statutes is contined to persons who are injured in person, property or means of supi)ort ; no right of action is given on the mere ground of relationship.^-' Though it was probably the intention of the legislature to give a single right of ac- tion and single damages to but one person for a single iiijury, it would seem that such right may arise under these statutes to a husVuind or wife and each of their children, be they ever so many, as well as to all other persons men- tioned in the section. ^-- In a very recent Illinois case the declaration averred that the defendant sold and gave to one E intoxicating liquors, •• and thereby caused him to l)ecome, and he was during that time before named, habitually intoxicated." It was con- tended that this was an averment that the intoxication was caused in whole by the defendant ; that such must be the proof; and that it Avas not sufficient, to sustain the count, to show that the intoxication was caused in part by the defend- ant. But the court overruled the olyection. "The stat- ute," they say, "gives the right of action where the defendant shall have caused the intoxication in whole or in part. Contracts are entire, and must be proved substan- tiallv as alleged ; but torts are divisible, and in them the J-'i Gan!^^'ly v. Perkins, 30 Mich. 495. 1" Fianlilin v. Sclienneihoin. S Ilun, 112. 4g INTOXICATING LIQUORS. ,,,,,„•,«■ may prove a part of "» «>3 r^Brrl!- thprc be enough proved to support the tort. Uut a lo h ,,t on the bond under the Indiana statute wh.eh averre tha heintoxieationwa, caused in part by Uquors so d bv the de Jndanfs prinoipal, and that while so intox,cated and bv ea on of sueh intoxieation, the purchaser eansed da,n- Z:L been held b.d.» Under the New HarnpsU.r^sUut , a declaration in trespass alleging an assault and battciyas ha"on commitled directly by the defeudant, .s snffi- 3rrsr:tt^::rrrt:;^:;s 'trtinctly :ver « the injury eompWued of, and the rLes ought to be recovered, resulted in consequence of M of intoxicating liquors ; and therefore an avermeut thaf w Jls A was intoxicated by reason of liquor sold h,m bv C he inflicted a mortal wound on the husband ot he linUff eausiug his death, does not sufficiently show that ?ie wlul was' inflieted by reason of the intox,eat,ou o A .» Z a complaint by a wife, alleging that her hn^-mnl be'came intoxicated by liquor purchased from the detendaut ':d "ereby neglected his work, ^"."-j-^-^t^J-i damaffed the plaintiff in her means of support, is gooa. hlltns under these statutes, the intoxicated person ,s nh?"ofC„"rnal injuries is the tortious ; in!tThc person injured, although the right of action frt^SrrX'thXorwhich caused the i« Am T Reff 111 ; Hill V. Blanford, 45 ni. 8. isRoth V. Eppy, 16 Am. L. Keg. Ill , mschaferv.Cox,49Ind.460 mBodgev. Hughes, 53 N. H. 615. i26Schaferv.Cox,49Ind.460. mBarnabyv,Wood,60Ind.405. i« English V. Beard, 51 Ind. 489. INTOXICATINO LIQUORS. 47 ore and recover, if rt.'*' But ii foin- ute, which averred by liquors sold by so intoxicated, and ihaser caused dam- Hampshire statute, ault and battery as defendant, is suffi- rer damages for an 1 while in a state of y furnished him by that the complaint iiplained of, and the id in consequence of refore an averment 1 of liquor sold him the husband of the ufficiently show that ' the intoxication of mg that her husband from the defendant, iered his money, and f support, is good.^'-" intoxicated person is njuries is the tortious h the right of action upon the wife or per- e of limitations runs nor which caused the f. Blanford, 45 HI. 8. intoxication, and not from the date of the injury .••'•' But the right of action so far vests at the time of the injury, that the statute does not divest it upon the death of the husl)and, nor does it abate upon conmiou-law principles. Tlie jjarty doing the injury has no interest in it and no control over it. The right of action vests in the injured person to l)e prose- cuted in his or her own name, and for his or her own use. The wife does not lose her identity by the death of her Inis- band. The relation of wife, though essential by the terms of the statute to the inception of the right of action, is not necessary in the prosecution of the remedy, and after the death of the hus))and she may bring her action for the cause of his death under the statute, though "widow" l)e not exi)ressly named in it.*™ The statute does not re(iuire that she be a wife at the time of bringing her action, but only at the date of the wTongful act.^''* So an em- ployer may sue for injuries done to liim by the intoxication of ins servant, after the relation of master and servant has terminated. Sec. 12. Evidence— What Acts will bar a Recovery. ^The uijuries sought to be established in these cases not being recognized or redressed under the rules of the com- mon law, the evidence necessary or competent to prove them and their extent is not coniined within the bounds of that admissible to establish a common-law toit.^''^ Under the rule, however, adopted by the Ohio courts in this class of cases, the plaintitf is required to prove his case beyond a reasonable doubt. ^^ What constitutes intoxication is a question of fact to be determined by the jury upon the whole evidence in the light of their own observation.^ 129 Emmett V. Grill, 39 Iowa, 690. 13" Haekett v. Smelsley, 77 111. 109. 131 Schneider v. Hosier, 21 Ohio St. 116 ; Jackson v. Brookins, 5 Hun, 530. 132 Dunlavey V.Watson, s«pra; Guenerech v. Smith, 34 la. 348; Knif- fen V. McConnell, 30 N. Y. 285. 133 Mason v. Shay, 7 Ch. L. N. 152. i«Roth V. Eppy, 16 Am. Law Keg. 111. As to the meaning of the term intoxicating liquors, as used in these lu IXTOXICATINO LIQUORS. The injury to the means of support of u man-ied woman, cnus^ by L sale of intoxicating li.iuors to her hnsba.ul, W^d^he acquires habits of intemperance and .Ulcn^ess, L vary greatly, according to the age c.nduicM. and c - c mstances of herself and husband. Evidence therefore n> ^c^es tluvt thehusbandw.. asober,incU.tn<.^:-^^ providing for and supporting his tamily prior to the tim. Xn the defendant caused his intoxication by selling to in intoxicating lienors, and after such sales and m coiis^ .uence thereof he became less industrious than ^J^^^ before ; that such sales caused him to neglect h s bu icss or work, or squander his means to any extent s(, a to LZe the uLis of support of his wife, is admissible; ::Hlie jury may be instructed to tak« these circ^ns^i.^ into consideration on the .piestion of damages. But it is improper for the court to charge as a matter ot law tha 4e selling of intoxicating liquors to a person tar gone i vili ts ot intoxication, and who hud become diseased l:;:!S; and mentany , would be more aggravating than s.lhng to one not so badly ad.licted to intemperance, oi v.ho had statute, see Wortey v. Spui^eon. ^^^J^^TTi:^^^ legislature to declare it ->' ^^ '^^:'^'tiLoe that lager that " fermented " was not •"'PiV' "" >„ '^complaint for selling •' in- beer i« not intoxicating is >"^dnm. ble ^n a compljU ^^^^^ ^^^^^ toxieating liquors." Com. v. Bubser, ^^/^'^^ ' f^j^^j^^^^^^ i, „ot "spir- als being produced by fermentation an I not bj d ""at^^^^^^^ . ^^^^^,^ Uuous liquor.'' ^eople^^Cnley, 20^^^^^^^^^ ^^ ^^^^ ,,,. 418; Nevn v. Ladue 3 IJ«»i«^ ^f^'^^^^^^ v. Wittmar, 12 Mo. 407, ale. Com. V. Jordan, 18 Pick. J;»; J;"\^" . j^ ^,,,^ ,vine, are held to be Ind. 106. ^^^ ,^ i:»Dunlavey V. Watson, .^8 la. 400. INTOXK'ATINO MQLOKS. 4!) u man'icd wonmn, •8 to her husbaiul, •ance tuul idlcneHS, eoiuUtion atul cir- idciice thoretbro in ', industrious man, f prior to tho time ation by selling t() sales and in coniso- 18 than he had b^ei^ leglect his business ly extent so as to wife, is admissible ; these circuuistanees damages."* But it L matter of law that person far gone iu d become diseased ravating than selling lerance, or who had S5; Jewett v. Wanshura, , State V. Stapp, -29 Iowa, the fact that spirituous ,d. 450 ; Com. v. Peckham, eer is intoxicating. Klare [nd. 312, it was held that, he court did not judicially ued by the defendant that not in the power of the 5 Blackf. 118, it was held, tor. Evidence that lager complaint for selling •' in- ,83. It has been held that !y distillation, is not "spir- ;; State v. Moore, 5 Blackf. V. Markoe, 17 Pick. 405; . Wittmar, 12 Mo. 407, ale, md wine, are held to be e also Houser v. State, 18 more viu'or <»f I'odv or mind. All su.-h .|U(".stions are for the jury"^"* Kvidcnce is admissible to prove the fact of the inlMxication of the party who caused the injury during a icrtain period, before it has been shown that such intoxica- tion was caused by the defendant.'" So it is proper to prove the practice of the drunkard in visiting other saloons, in order to show what proportion of the money he hail spent for li(juors had been paid to defendant.''* Tlie ina- bility of the husband to obtain employment on account of his habits of intoxication may be sho. i, but not his desire for intoxicating li(iuors.™ Evidence is inadmissible to prove sales of liuuor made prior to the passaije of the acts ilivin"^ the remedy ,'<« or subsetiuent to tho commencement of the action ;'" and evidence that the wife, since the suit was brought, had purchased liciuors and drunk them with her husband, is admissible only where damages are sought by her for injury to her feelings and disgrace caused by her husband's intoxication.'" Under that section of the statutes, allowing the recovery of compensation for taking care of a person while intoxicated, it is held that, if the person so intoxicated had recovered from the elTeet of tho liquor sold him by the defendant, and was sober at the time of receiving the injury, or if he had become sober and afterwards got intoxicated upon liciuors sold by others, the first seller would not be held lial)lc. Therefore, in such a case, any evidence is admissible which may tend to show that the injured party had become sol)cr before the accident, or had injured himself while under the <^ffects of an intoxication subsequent to that caused by the defendant. So, also, evidence is proper which may show the leu'Tth of time required to recover from an intoxica- i3« Ludwig V. Sager, Supreme Court of Illinois, January Term, 1877. 137 Woolheather v. Risley, 38 la. 480. 138 Hemmens v. Bentley, 32 Mich. 89. 139 Roth V. Eppy, supm. i« Dubois V. Miller, 5 Hun, 332. wi Woolheather v. Risley. mpm. i« Kearney v. Fitzgerald, sui>m. 4 fiO ixToxKATiNO Ligi'ons. <•„.„.. ,,„! the (l.livory ..f tin- Vu^uov to the porson .s suff.- cioMt <.vi.U.nce of u sulc'" The cvi.U.ncc. must be conhncl to the cause state.l in the .le.-hirafu.n or iK-tltion : un.l whore the injury uUejre.l is to n.eans o( support, it .s error U> luhnit" proof of injury to property.'^' , . i „ Una..r those arts whi.h -ive a renuMly in ...se o.ily ot sales or .rifts made in viohiti..n of theirpn.visions, the proof m re- nuiml to he more direct, such an action hcin^' n. its nature Lsi .-riu.inal. Where the action is brought tor damage, caused hv the sale of lic,uors to an habitual ^»>unkard . nu.st Z shown that the dctV-ndant knew hin, to be such,- aUho.^ it m.e.l n<.t be proved that he was intoxicated a the nn. uj lienor was Wished >.^ ^^"* '^"''^^'^t i:;.!;;' - perate habits .>f the person nn.y be proved by -1 "^ ' ; And in the case of a sale to a minor, the burden ot pioot .s ,t ; - Icfendant to slu.w that he believe And it has been held that a sale to a nunor, wl o kHfT.r the liquor in behalf of one to whon. d m.ghtlaw tully "^ .d , s in ontravention of th<. 4atute.- The turu.shn.g f Cors to a minor, as prohibited in the statute, .s com- L: although the liquor may have been V^r^^^^^ l,ther, an-"- Jproof to the contrary, raise the presumption that the sales were made to the patient.''^ 1*1 Braiinan V. Ailanis, siywi. i« State V. Ftihfleia. 37 Mo. 517. 145 lliu-kett V. Snielslcy, 77 111. 109. i«Markevt V. Iloffner, 4 Am. L.Roc.lll. ;:s:::"j,;ni'.»";'";' «"-w,r. «. «>«.,,» c..„„. .::■. s.... '•,!:k1«u'v. *;.,., « ...a. 77; K,»e„,.„ v. S...e, »■ *». -«'■ v State, 41 Iiiil. 102. 150 state V. Fairfield, ;»7 Me. ol7. 151 State V. Munson, 2.'i Ohio St. 381. i62Boydv. Watt, .siij)m. ^^ INTOXICATINCl I-IQUOnS. :>! he porson is suffi- lUUHt be ooiitiiH'd •tition ; un< rc- l»ciiier- son has by iiis acts and conduel voluntarily and knowingly encouraged and contributed to bring about such a condi- tion in another, he can not be permitted to conii)lain of any rongs which he may sutler at the hands of one while in a state which he has assisted to produce. Therefore the seller would not be protected from the consecpiences of his own actions, if he should receive injury at the hands of one of his intoxicated customers. On the same •> inciple, a wife suing for injury to her means of .si ppori, may be estopped by her acts from recovering any damages lor an injury to which she may have contributed. '^"^ Therefore, iu an action by the wife, if it be proved that sho voluntarily bought li(iuors of the defendant to be drunk as a beverage by herself and her husband, .she can not be considered a.s an innocent sullerer from the efl'ects of intoxicating liquors, if iiijured by him while intoxicated, and will not be enti- tled to the protection of the statute. But the purchase by her of li(pior lor the use of her husband at home, in order to prevent him from squandering time aud money at saloon s,^ is not such a complicity on her part as to bar her recovery for such injuries.^" The fact that the wife accompanied her husband to various places and gatherings, and dr«nk liquors with him, and that the husband kept liquors in his home and drank the same at home with the wife's knowledge and approval, and that all of such drinking on the part of her husband was with her knowledge and consent, is proper to be considered by the jury on the question of damages, es- pecially as the statute allows exemplary damages. But such facts do not constitute a bar to the action, *'>* and the wife may prove that her husband compelled her to attend such iM Kearney v. Fitzgerald, Supreme Court of Iowa, not yet reporteil: Kngleken v. Hilger, 75. iM Kearney v. Fitzgerald, supra, IM ITackett v. Smelsley, 77 111. 109. INTOXICATKO I.IQ1.0B8. ■.t«,l to show the whole circum- nlacc., and may he l'»™"f *,'° ' °f her conauet. And Itance, of the «-;/l"i:rw«l •>»'*■'""'*"'' where the plaint.ft's hu*and J-a^ ^ ^^ ,,y ,^, and »he had forbidden t^"-^/ J^ „„«„» »he went to defendant, but a day "^W^^'y with her husband, and the defendant', '"'o™ ,'" HSalt to sell him all the i„ Ms presenee directed *-> ^rfen^^t ^^^^ ^^^^ ^,_^ „,„or he asked for ■' «l.^°Jf ;Xonduct was that the only reasonable mfercnee f'»» J^" ,,„,b,„d, and that plaLiff aetedunder heeoe, onon>e ^^^^^ ^^^^ ^^^.^ L jury had a right to --"^ *^^*;, „, „ot acting vol- inference, and there ore k|.cw that sh ^^^^^ ^^^^ ^^^ „„tarily.'» In a Now Yo k '^^ to drive to a plaintifl-s allowing h.s son to take n ^^ i„„,„,,e„te neighbor's, though knowu.g the s°« t ^^ ^^ ^^,.^^^ habits, was not such «"«— ^^Tf, l^orsc, where the his right of action fo '^'^'J'°^ ,ic„„r, and, wlnl" rdrttsCanre.trt''U so .olenUy that .t 156 jewettv.Wanshura, supra. r,7Bertholf v.0-Beilly,8Ui)m. 553 whole cii-cuni- oonduct. And itual drunkard, to him by the ice she went to 51- husband, and jell hun all the a case, that the vet was that the usband, and that ndant drew this s not acting vol- .s held that the rse to drive to a )e of intemperate ;ence as to defeat horse, where the liquor, and, whib' , violently that it \* I