19 S.D. 11 | S.D. | 1904
This is.an action by the plain tiff,'as widow .of Miphael Garrigan, deceased, to recoven, of-■ the■ defendants damages for the ¡loss of support for herself.. and. child,-•, paused by.-the-intoxication of her. husband.by intoxicants sold- him -,015 gjyen./to him by. the defendant Kennedy..-. Verdict and-judgment; iwere,in favor of the plaintiff, ¡and the; defendants /¿have appealed;;.-; ; , ... ....
-;¡;,It is alleged-in th.e complaint,; ip..substance, that the plaintiff was- the, ¡widow, of Michael, Garrigan, deceased, and' thaf .she had;dependent, on her for support a minor- son; that the;¡defend: ant Kennedy, was a .licensed:saloon -keeper in the tpwq.:of .Dell Rapids,rand thatdefendants- Smithiand-Gillman.;were -sureties upon his.-bond as such saloon'keeper; that for a longtime pripr and .at.ail times,subsequent to-ffhe 1st-day; of July,’1900, and-up tp,the 'time of tho death of the said -Miehael Garrigan, he was a .person, in the habit- of, getting ■ intoxicated, and - was • for ' the greater’part-of the-last year of his-life in a-,state .of habitual intoxication by and from -the, use of intoxicating - liquors; - ‘that at. diverstand sundry times prior and subsequent!© July .1, -1900,, and.up to the.,time of the-death of said Garrigan, and-while he, the said Garrigan, was in the habit of getting intoxicated and at divers and sundry times while .he, the said=Garrigan,-., was iptoxicated, .the defendant Kennedy did,directly and indirectly, by bimself as well- as by his clerks, agents,, and-servants, sell,, furnish,i-grive,. 'and deliver spirituous liquors to the' said Garri-gan ; that said intoxicating liquors so sold by .said' defendant Kennedy /to,the said Garrigan weré sold to-him tobe used” as a beverage,“ 'and were by him tisedfor such purpose in the saloon ' aforesaid,-as .well as" elsewhere; thatlby' reason'off' the' use - 'of such liquors aforesaid the said Garrigan was kept, pfáctically
It is contended by the defendants that the provision of our state Constitution relating to the subject of titles to legislative acts is mandatory, and that it prohibits the Legislature from passing an act embracing more than one subject, and imposing upon it the duty of expressing the subject in the title. While we agree with the contention of counsel that the .constitutional provision is mandatory, we are unable to agree with them in their conclusion that the act m controversy contains two subjects not expressed in the title. The act itself provides for the licensing, restriction, and fegulation of the business of the manufacture and sale of spirituous and intoxicating liquors. The provisions referred to, as stating the second subject, clearly come within the provisions for restricting and regulating the business. One method of restricting and regulating the business would naturally be the imposing of penalties and liabilities upon parties engaged in the manufacture or sale of intoxicating liquors, and in providing a method by ■which such penalties and liabilities on the part of persons so engaged in the traffic are to be enforced. The contention of the appellants that the prohibition of the sale or gift of intoxicating liquors to certain classes'of persons mentioned in sections 11 and 16 creates entirely new causes of action, and the establishment of this very arbitrary and unfair rule of proceedings has nothing to do with, and is not germane to, the act providing a method of licensing, restriction, and regulation, and that the title to the act does not in any manner indicate these portions of it, is -untenable. This is altogether too narrow a construction of the constitutional provision, and under
It will be noticed that the title to the act we are considering is broad and comprehensive, and that it provides for' the licensing, restriction, and regulation of the business. Section 16 of the act, therefore, providing that a married woman may recover damages resulting from the sale of intoxicating liquors to her husband, is clearly in the nature of a restriction of the sale; and the same may be said of section 11, which provides that it shall be unlawful for parties engaged in the sale of intoxicating liquors to sell to an intoxicated person, to a person in the habit of getting intoxicated, or to minors. State v. Morgan, 2 S. D. 32, 48 N. W. 314; State v. Becker, 3 S. D. 29, 51 N. W. 1018; State v. Ayers, 8 S. D. 517, 67 N. W. 611; Stuart et al. v. Kirley et al., 12 S. D. 245, 81 N. W. 147. This court, in construing statutes claimed to be in qonflict with this provision of the Constitution, has uniformly held that this provision must have a liberal construction, and, where the act or provisions of the act claimed to be in violation of the Constitution are not shown to be clearly in conflict with this provision of the Constitution, the act will be upheld. In State v. Morgan this court says: “Upon a critical examination of these cases, however, it will be seen that, while it is necessary to construe this provision so as to prevent the evils iatended to be met, yet it is desirable to avoid the opposite extreme,' so as not to embarrass the Legislature in the legitimate exercise of its powers, and compel a needless multiplication of bills, designed to meet the same object. ” The court quotes with approval the following from State v. Miller, 45 Mo. 497: “The courts, in all the states where a like or similar provision exists, have given a
Our attention has been called to a number of cases decided in Michigan and other states construing a clause similar to that contained in our Constitution, but none of them contained a title as broad and comprehensive as the title to the act in question. Without taking time to review the various authorities cited by counsel, it must suffice to say that, in our opinion, the provisions of the act of 1897, called to our attention as being in conflict with the constitutional provision, are clearly within the rule requiring the subject to be expressed in-the title. We are clearly of the opinion, therefore, -that the provisions of the act in controversy do not violate this clause of the Constitution. It may be further stated that the provisions of the act of 1897 have been before this court in numerous cases, and their constitutionality has either not been questioned or has been uniformly sustained. State v. Zophy, 14 S. D. 119, 84 N. W. 391, 86 Am. St. Rep. 741; State v. Williams, 11 S. D. 64, 75 N. W. 815; State v. Donaldson, 12 S. D. 259, 81 N. W. 299; State v. Bradley, 15 S. D. 148, 87 N. W. 590; State ex rel. Grigsby v. Buechler, 10 S. D. 156, 72 N. W. 114; State v. Bradford, 12 S. D. 207, 80 N. W. 143; Nordin v. Kjos, 13 S. D. 497, 83 N. W. 573; State v. Bradford, on rehearing 13 S.D. 201,
It is further contended by the appellants that the evidence is insufficient to justify the verdict, in that no actual damage has been proven on the part of the plaintiff; that no facts have been given in evidence on which the jury could estimate the damage, if any sustained by the plaintiff; that the plaintiff has not proven any facts which would entitle her to recover; that the plaintiff has not proven such facts as would constitute a cause of action. Upon examination of the evidence, read in connection with the admissions in the answer, we are of the opinion that there were sufficient facts presented to the jury to fully sustain the verdict rendered by it. It was shown that Garrigan during the last few months of his life was in the habit of becoming intoxicated, and spent all, or nearly all, of his earnings in procuring intoxicating liquors, part of which,at least, were purchased in the saloon of the defendant Kennedy; that he continued drinking up to about the time he committed suicide on April 1, 19.01; that at the time of his death he left no means of support for his widow and minor child, and that she has been dependent, since his death, upon her own exertions for support; and that Garrigan, when sober, was able to earn about $100 per month, and was thereby enabled to provide suitable support for his wife and child. The jury would naturally draw from this evidence the conclusion that the intoxicating liquors sold and furnished Garrigan by the defendant Kennedy caused him to neglect the support of his family in his lifetime,
It is strenuously contended by the appellants that the evidence was insufficient to justify the jury in concluding that the liquor sold to Garrigan by the defendant Kennedy was the cause of his suicide, and that there was no evidence tending to prove that he had been furnished any intoxicating liquors by the defendant Kennedy for some time prior to his suicide, and therefore the intoxicating liquor sold by the defendant Kennedy was not the proximate cause of his suicide. It is quite apparent from the testimony introduced that Garrigan was practically intoxicated the larger portion of his time between December, 1900, and the time of his death, and that during that time the defendant Kennedy furnished him with more or less of intoxicating liquors producing his intoxication. The natural result of such continued intoxication would be to weaken and destroy the mind of Garrigan, and lead him to commit suicide. The jury were authorized, therefore, to draw the inference from the facts proved and admitted that the sale of in
This brings us to the instructions to the jury and the instructions requested by counsel for defendants and refused by the court. The requested instructions were as follows: “You are instructed, as a matter of law, that if you find from the evidence that defendant Kennedy sold intoxicating liquor to Michael Garrigan after the 1st day of July, 1900, and you further find that such liquor contributed to his inability to support his wife and child, and that the said Michael Garrigan took his own life on the 1st day of April, 1901, then the plaintiff is not entitled to recover anything for loss of support after April 1, '1901.” “In this action the undisputed evidence shows that Michael Garrigan committed suicide by shooting himself with a revolver on Monday afternoon, the 1st day of April, 1901, while sober, and hence the plaintiff is not entitled to recover
. The defendants excepted specially to portions of paragraphs 7 and 9 of the judge’s charge to the jury of its own motion. The portions of the paragraphs excepted to are as follows: “So it is only in regard to the damages arising from the want of support that the jury are entitled to return damages. In that regard you have a right to return damages if you believe that Mr. Garrigan was a person in the habit of becoming intoxicated, and that this defendant Samuel Kennedy,by himself, agent, or servants, sold or gave him intoxicating liquor, after the 1st of July, 1900, that contributed to his habitual intoxication, and you further believe that such habitual intoxication injured the plaintiff and her son in their means of support.” “If you find for the plaintiff she will be entitled to recover such reasonable sum of money, not to exceed $2,000, as, in your judgment, will compensate her for the actual damage, if any, to her means of support, caused by sales of intoxicating liquor by defendant, bis agents or servants, to the plaintiff’s husband.” It is contended by the appellants that by that portion of instruction No. 7 the court left to the jury, without any limitation whatever as to time, the question of the assessment of damages, and that by that portion of the charge contained in paragraph No. 9 to which exception was taken the jury was authorized to return damages in any sum not exceeding $2,000, and that nothing whatever was said to "the jury
Rinding no error in the record, the judgment of the circuit court and order denying a new trial are affirmed.