37 Mich. 25 | Mich. | 1877
The plaintiff in error was brought into court upon a capias to answer to the suit of Helen M. Dunks “in an action of trespass on the case for selling and giving liquor to Edward J. Dunks, her husband, in violation of law,’ and contributing to the intoxication of said Edward J. Dunks, to the damage of said plaintiff” etc.
The declaration consists of but one count and under it plaintiff sought to recover back the moneys' paid by her husband to defendant for liquor, and also damages for the injury which she sustained by reason of the intoxication of her said husband. Counsel for plaintiff in error insist that there was a misjoinder of two distinct causes of action in this count, an action of assumpsit to recover back the mon
That such causes of action cannot be joined in this manner counsel for defendant in error do not deny, nor do they dispute the effect of such a misjoinder. They deny any misjoinder; they say there is in the declaration no count in assumpsit; that the statute gives the wife the right to recover back the money, and to recover the other damages enumerated; that the whole cause depends upon the wrongful and unlawful acts of the defendant, and that case is the appropriate remedy.
That this is the appropriate remedy to recover any damages which the plaintiff has sustained by reason of such intoxication of her husband there can be no question, and this is conceded by counsel for both parties. It seems therefore only necessary to determine whether it is also the appropriate form to recover back moneys paid for spirituous or intoxicating liquors under the statute.
The statute under which this action was brought prohibited the manufacture and sale of certain kinds of liquors-except as therein specified. The second section provided that all payments for such liquors sold in violation of law, should be considered as having been received without consideration, and against law and equity, and that any money or other property paid therefor might be recovered back by the person so paying the same, his wife, or any of his children, or his parent, guardian, husband or employer. Farther on in this same section, every wife, child, parent, guardian, husband or other person, who shall be injured in person, property, means of support or otherwise, by any intoxicated person, or by reason of the intoxication of any person, shall have a right of action against any one who by selling or giving intoxicating liquor caused or contributed to the intoxication of such person, and in any such action the plaintiff shall have a right to recover actual and exemplary damages. These are the provisions under- which this action was brought. The statute does not jorescribe the form of remedy, so that the party seeking to recover under either
That assumpsit is the proper form of' action to recover back moneys which have been received by a person without ‘Consideration and against law and equity, there could seem to be no reasonable doubt. And the late cases in this state, •sustaining the right of the party making such payments, to set off the same, in an action brought against him, is a clear recognition of this principle. Roethke v. Philip Best Brewing Co., 33 Mich., 310; Webber v. Howe et al., 36 Mich., 150.
We consider it equally clear that case is not the appropriate remedy. There are also other considerations arising ■out of these statutory provisions which would prevent claims •arising thereunder from being recovered under the same form of action and count as was attempted in this case. It is quite clear that if either of the persons mentioned under the first clause, brings an action and recovers back the ■moneys paid for such liquors, neither of the other persons named could thereafter bring an action to recover back the ■same moneys. The first action would be a bar to any future action that might be brought. The money paid could be recovered back but once, and a recovery by one would prevent a recovery by the others. This would not be so in reference to injuries sustained. Several persons may at the same time be injured, in person, property or means of support by an intoxicated person, or by reason of his intoxication, and the injury to each, where several, would entitle each to maintain a cause of action therefor. And where ■several such actions were brought, the defense might vary somewhat in each case, yet would be substantially the same. The defenses however.in an action brought to recover back money paid as being paid without consideration, and in an action to recover damages sustained, would be very different, and the evidence introduced in each case "would in many respects, be different also.
In the former notion, which is an equitable one, the party endeavors to prove the amount paid, and the issue is limited and simple. In the latter the party is entitled to
As the case must go back for a new trial, and as this-difficulty may be obviated by an amendment of the declaration, by striking out all claim for moneys paid, thus making it conform with the writ, we will proceed to consider such of the other questions raised as are likely to arise again upon a new trial.
During the trial counsel for the plaintiff introduced evidence tending to prove the amount and value of plaintiff’s-husband’s property and business when first he became a resident of Hudson in 1865 and when he left Hudson in 1875. They also introduced evidence tending to show how plaintiff’s health was injuriously affected on account of her husband’s intoxication; that she was excluded from society-on account thereof, -and her mental sufferings generally on account of his drunkenness. This was all objected to andi is assigned as error.
Our statute gives to the wife who has been injured in-person, property, means of support, or otherwise, by any-intoxicated person, or by reason of the intoxication of any person, a right of action in her own name against the person who has by selling or giving any intoxicating liquor or otherwise, caused or contributed to such intoxication, “and in any such action the plaintiff shall have a right to recover' actual and exemplary damages.”
In Mulford v. Clewell, 21 Ohio St., 196, it was held that a count in the declaration which merely charged that the plaintiff had suffered mental anguish, disgrace and loss of society or companionship, was not sufficient; that such suffering did not amount to “injury to the person” within the meaning of the statute. Without any desire at present to either approve of this ruling or to question its correctness,
The wrong committed by the defendant in selling intoxicating liquors to the plaintiff’s husband, was not only in open violation of the laws of this state, but was persistently persevered in by the defendant, regardless alike of the suffering and ruin he was inflicting and entailing upon the unfortunate victim and upon his innocent and unoffending wife and child. A’jury might measure, if they could, and allow the wife every dollar of loss she could prove she had sustained for the injuries to her person, her property and means of support, and then would fall far short of compensating her for the shame and mental anxiety which she suffered daily in seeing her husband becoming a common drunkard, the finger of scorn pointed at him, his business neglected and going to ruin, his property melting away, himself and wife excluded from respectable society, the means which should be used in support of his family squandered in strong drink, and his once happy home broken up and destroyed, if these facts could not toe proven and considered by them. These áre but some of .the natural results of drunkenness, and the better sense of .all good people recognize the mental suffering thus caused .•as constituting a real injury to the person; and although not capable of an actual money measurement, yet that it ■should be taken into consideration by a jury, who could, from all the facts in the case and their own sense of justice, award such damages as would at least compensate in ■part for the groat wrong done her, and at the same time punish the defendant for the gross, willful and deliberate wrong which he, for mere gain, had wantonly perpetrated.
Mental injuries are frequently of the most deep and lasting kind, and the wounds thus inflicted are often the most severe. That they are a real injury and damage to the sufferer no one will dispute. Why, then, should a jury not consider them? Take the case of a husband and wife who' are dependent upon his daily labor for support. If he has good health, is sober and industrious, the reward received for his toil will enable them to live comfortably and respectably, and if they are blessed with children, to educate and
Care should, however, be taken in this class of cases not to permit facts to be given in evidence tending to prove damages which might be considered fanciful merely or too remote. Of course in a case like the present, the inquiry extends over a considerable space of time, and yet even here there should be some limit. The declaration sets forth
In many cases it must be very difficult to make this discrimination. A person engaged in business may be to all outward appearances prosperous aud supposed to be carrying on. a profitable business while in fact he may be on the verge of bankruptcy, and this fact, 'unknown to others, may be the cause of his indulging in intoxicating liquors. Tho neglect of business and loss of property in consequence thereof, wherever the same can fairly be attributed to his intemperate habits, may properly be iaid before the jury, and so of mauy other facts, as the effect upon the children, not, as already said, as a substantive cause of action, — not for the purpose of allowing the amount of the loss of property, or the injuries the child sustained, as damages, because the property so lost Avas not the property of the plaintiff, and the child is given a right of action of its own, — but as circumstances to be considered in tho case Avith all the others, as tending to sIioav the damages sustained by the plaintiff. Upon, this subject see Ganssly v. Perkins, 30 Mich., 494.
This whole question of permitting all the facts and circumstances in this class of cases to be laid before the jury, under such instructions and advice from the court as would tend to prevent the allowance of such as might be merely possible, or too remote and fanciful in their character to be safely considered as the result of the injury, was clearly laid down by Christiancy, J., in Allison v. Chandler, 11 Mich., 555, 556. And the question of allowing for mental as well as physical damages was fully considered in Welch v. Ware, 32 Mich., 83, and we see no occasion to depart from what was there said upon this subject.
The fourth request of defendant to charge was too broad, and the court properly modified it. The mere fact that Dunks had been of intemperate habits previous to April, 1871, would not justify the defendant in selling liquor to him, and would not prevent the plaintiff from recovering damages on account of injuries sustained, caused by his intoxication from the use of liquors sold him by defendant after that date. Ganssly v. Perkins, 30 Mich., 495. For his intemperance previous to that time defendant would not be responsible.