136 Mo. App. 265 | Mo. Ct. App. | 1909
This action is prosecuted by the wife of an habitual drunkard against a licensed dram-shop keeper and the sureties oh his bond, to recover the penalty provided in section 3017, Revised Statutes 1899. At the trial, plaintiff took a nonsuit with leave to move to set the same aside and after her motion was overruled, brought the case here by appeal.
All the facts constitutive of the cause pleaded in the petition save one, either were admitted or were supported by evidence introduced by plaintiff. It was admitted that defendant was a dramshop keeper, and that he and his codefendants executed the bond pleaded, and it was shown that the husband was an habitual drunkard and that before the alleged sale, defendant had been served by plaintiff with a statutory notice not to sell or provide her husband with intoxicating liquors. But the evidence offered by plaintiff to prove the fact that defendant did provide her husband with intoxicating liquors in' the face of the notice was rejected by the court on the objection of defendant and the propriety of that ruling is the principal question before us for solution. The evidence consisted of the deposition of Stephen D. Muckey, the habitual drunkard. He testified that on the date alleged, a detective named Moss invited him to go into defendant’s dramshop and “have something.” The invitation was accepted and the detective “treated” the witness, who drank intoxicating
Section 3017, Revised Statutes 1899, not only provides as penalties for the offense charged in the petition the forfeiture by the dramshop keeper to the wife of the habitual drunkard of a sum not less than fifty nor more than five hundred dollars to be recovered in a civil action and the forfeiture of the dramshop license of the offender, but also constitutes the offense a misdemeanor, and provides a fine “of not less than five nor more than one hundred dollars for each offense to be collected and paid into the county treasury for the use and benefit of the common school fund of such county.”
This reference to the statute is made for the purpose of directing attention to the criminal nature of
It is apparent the accepted reasons for the rule are founded on considerations of public policy as are also the common law exceptions to the rule. These excep
And in Moeckel v. Heim, 134 Mo. 576, it was said, “that where the husband is made the conduit and mouthpiece of the fraud of others, and in furtherance of that fraud prevails upon his wife to sign a note and incumber her property, that there a court of equity, in the absence of other evidence, in order to unearth that fraud and to expose it in all of its details, will, ex necessitate rei, and upon a familiar common law prin
In Cramer v. Hurt, supra, this doctrine was given further application. There, a husband sued a physician for damages occasioned by an abortion performed on his wife by the physician. Held that the wife was a competent witness to testify to the fact that defendant had performed the operation. Tavo principal reasons for the ruling were assigned, both of which may be said to rest on considerations of public policy. First, that of necessity, to which belonged the class of cases under review. The offense being a crime of a revolting character, it would be presumed that knowledge of the act would be confined to the participants in it and if. one of them were disqualified from giving testimony, it would contravene the principle we have stated “that in all cases that evidence is good than which the matter of the subject presumes none better to be attainable.” The second reason is stated in this language: “Moreover, Ave think Mrs. Cramer is a competent witness in the case on general grounds of public policy, for if it be knoAvn that a married woman is a competent witness for her husband in a suit for damages by him against a physician who produces an abortion upon her without the consent of her husband, in consequence of which her health is injured and he is deprived of her services to which he is entitled by law, and expenses are entailed upon him in her nursing and for medical treatment, it might to some extent, at least, put a stop to such revolting and unnatural practices.”
In the present case the offense charged against defendant, is criminal in its nature and is one that the law Avhich takes notice of the common traits of human nature would presume would be committed only in the most clandestine manner. The appetite of the habitual drunkard for intoxicating liquor is so strong that it Avill impel him to have recourse to every device and
We do not agree with defendant that the nonsuit taken by plaintiff was voluntary. The rejection of the deposition left her without proof of one of the elemental facts of her cause of action. The ruling precluded a recovery and entitled her to stop at that point and take a nonsuit. Her action was compulsory, not voluntary, and a careful analysis of the opinion in Lewis v. Mining Co., 199 Mo. 463, demonstrates that the views there entertained are not inconsistent with what we are saying. In that case, the plaintiff was not put ,out of action by an adverse ruling on a question of evidence, but after the evidence was in, took a nonsuit on the mere intimation of the judge that he intended to sustain a demurrer to the evidence. It was held that until the court ruled on the demurrer, no exception could be taken and preserved in the record and without an
The judgment is reversed and the cause remanded.