Hollis v. Davis

56 N.H. 74 | N.H. | 1875

Lead Opinion

FROM HILLSBOROUGH CIRCUIT COURT. The learned counsel for the defendant admits, in his argument, that the act of 1870, upon which this action is founded, might be construed to include a municipal corporation, if sound policy required it. It is claimed that the general policy of the law, in this state, in relation to the relief of the poor, is, that the burden shall be made to fall on town and county municipalities, where the burden of their support may be sustained without the risk of reducing others to pauperism; and that the courts in this state, ever since the early cases of Hillsborough v. Deering,4 N.H. 94, and Dover v. McMurphy, ib. 158, have refused to give to the statute, making parent and child liable for the support of the other when in need of relief, the construction which its terms would seem to require, or at least, would admit, to wit, that the parent or child sought to be charged should be held liable for the support, when he has the means to supply it, for the time being. It is further claimed, that the construction of the act in question, contended for by the plaintiff in order to maintain this action, is in direct contravention *82 of the recognized policy of the law on the subject of the support of paupers.

The provisions of the statute referred to are as follows: "The relations of any poor person, in the line of father or grandfather, mother or grandmother, children or grandchildren, of sufficient ability, shall be liable to maintain such person when standing in need of relief. If such person has no such relations of sufficient ability, the town wherein such person has a legal settlement shall be liable for his support." Gen. Stats., ch. 74, sec. 8. In giving construction to this statute, the court, in Colebrook v. Stewarstown, 30 N.H. 114, laid down the rule as follows: "The question is to be decided with reference to the existing state of things. * * If the relative, in the present state of his family and means, and in the present state of destitution of his relatives and their ability to support themselves, cannot afford the assistance their situation calls for without reducing his property below the amount required, with his labor, to afford a comfortable support to his family, and thus hazarding their comfortable support in future, he is not to be deemed a person of sufficient ability, within the meaning of the statute." To the same effect are Hillsborough v. Deering and Dover v. McMurphy, supra.

It will be noticed, that the statute, in relation to the support of paupers, imposes that burden on relations "of sufficient ability" only. It will also be noticed, that, in the act of 1870, upon which this suit is founded, the qualification, that the person sought to be charged must be of sufficient ability, is omitted. The omission of these words affords strong grounds for the inference that the qualification of sufficient ability was not intended to apply. The statute, unquestionably, was intended to be in aid of the general statute prohibiting the sale of spirituous liquors. Such is its title; and its provisions are such that, when enforced, they must materially aid in the enforcement of the provisions of ch. 99 of the General Statutes. It would seem that the legislature intended to say to those who might seek to violate its provisions, in effect, something like this: "The indiscriminate use of intoxicating liquors is the prolific source of much of the poverty, suffering, and crime of the state. Its sale, except for certain limited and proper purposes, is therefore forbidden. If any one shall, notwithstanding its sale is prohibited, wilfully violate the provisions of the law in that regard, he shall, upon conviction, suffer fine or imprisonment. But, inasmuch as experience has shown that the law is often violated, and the detection and conviction of the guilty not always certain, we will, therefore, throw around the citizens of this state an additional protection, by subjecting every one who shall dare to violate this law to the liability of making good whatever damages may happen in consequence of the intoxication of any person from the use of liquor so unlawfully furnished, although the consequence may be that the person subjected to such damages may be thereby reduced to poverty, and himself and his family thereby made liable to become a public charge for their support." The apprehension of such a result might, in the minds *83 of the legislature, be considered an additional restraint upon persons who would otherwise not hesitate to disobey the law in this respect. If the legislature had not intended to include persons liable to towns for injury to paupers, in consequence of intoxication from liquors unlawfully furnished, it would have guarded against such a construction of the statute by inserting language excluding such liability, except in persons of sufficient ability.

The term "party" used in the statute is also broad enough to include a municipal corporation. The act provides that "any person who shall be in any manner dependent on such injured person" may recover. "Person" is here the proper word to be employed, for none but persons could be dependent on another person. A municipal corporation is not dependent on a person "for means of support," nor in any other sense. The act next provides that "any party on whom such injured person may be dependent" may recover. If instead of "party" the word "person" had been used, it could doubtless be extended and applied to bodies corporate and politic, as well as to individuals — Gen. Stats., ch. 1, sec. 9; but from the fact that the legislature used the word "person" where only individuals and not corporations could be dependent, and used the word "party" where an injured person might be dependent on a municipal corporation as well as on an individual, there is strong reason for holding that, by the term "party," the legislature intended to include municipal corporations as well as individuals.

Before dismissing this view of the case, it is hardly necessary to add, that if the question of liability depends upon the ability of the person sought to be charged, it would be a fact to be settled by the jury upon the trial.

The defendant admits that there are five different cases specified in the third section of the act, for which a remedy by action is there given, and all of them involving such private and personal relations as that of parent and child, husband and wife, and an injury to either with a remedy to the other, or without involving such relation, founded on an injury to person or property, with a remedy to the party injured. It is also admitted, that if, after the words "any party on whom such injured person may be dependent," in the third section, the words "or may become dependent by reason of such injury" had been added, a sixth case not embraced in the act would have been provided for, so as to include the case of an emancipated son not dependent on his father of sufficient ability for the means of support, because supporting himself by his own labor, but made dependent on him by reason of the injury: although in case of such amendment the defendant contends that the act could not be construed to embrace the plaintiffs' case without an express declaration of such intention, upon the ground above presented; that considerations of public policy would forbid such construction without such declaration.

The first part of section 3 relates solely to the case of injury by one intoxicated to the person or property of another, with a remedy to *84 such other. As to the construction to be given to so much of the act, no question is raised, and none was raised, except as to the form of the action, in Bodge v. Hughes, 53 N.H. 614. The remainder of the section undoubtedly includes the second, third, fourth, and fifth cases mentioned in the defendant's brief. But it is claimed that the act does not include the case of a person who is not dependent at the time of the injury: that in order to include a person who becomes dependent in consequence of such jury, the words "or may become dependent by reason of such jury," or words of like import, should be inserted, so that the section would read, "any person who shall be in any manner dependent, or may become dependent by reason of such injury, on such injured person for means of support, or any party on whom such injured person may be dependent, or may become dependent by reason of such injury, may recover from the person unlawfully selling,"c. And I think the defendant is right in the construction he contends for. If the legislature intended to make a person who furnishes intoxicating liquor, in such a case liable for damages caused by a person intoxicated from such liquor, or for damages happening to him if the relation of dependency did not exist at the time the injury was caused or happened, but was created by reason of such injury, it has failed to say so. The reason may be equally good for making such legislation apply in the latter as in the former case; but the question is not whether it ought so to apply, but has the legislature so enacted? The language used, — "any person who shall be in any manner dependent," or, "any party on whom such injured person may be dependent," — cannot be construed to mean any person who shall become or may become dependent by reason of such intoxication. The words, according to their common and approved usage, refer to the time of the injury, and not to a time subsequent, and must be so construed. Gen. Stats., ch. 1, sec. 2. The intention is to be gathered from the language used, and cannot be extended by judicial construction to a case not embraced within the fair construction of the act. If it had been the legislative intent to extend the act to cases of dependencies happening after the injury, and caused thereby, the framers of the act would hardly have failed to express themselves in language that could not be misunderstood.

As the case stated in the declaration does not come within the terms of the act, the demurrer must be sustained.






Concurrence Opinion

The position is taken, in the very able and ingenious argument for the defendant, that the term "party" which is used in the statute does not necessarily include municipal corporations, and that it is against the policy of our law so to construe this statute as to make it embrace such corporations. I believe the use of the word party, in the sense of one of two opposing litigants, is too well established to be now questioned. It is so defined in Johnson's folio dictionary. It would be as easy and as natural so to construe the word as to make it mean corporations to the exclusion of individuals, as the contrary. I cannot therefore accede to this view of the case. *85

The position is also taken, that the offence of unlawfully selling spirituous liquor is considered by our law so heinous, that it ought to be considered so far a felony that no private action ought to be sustained until the offender has first been indicted and convicted. But I believe the rule requiring a prosecution and conviction of the offender before allowing a civil action has never been held in this state, and, as the offence is not by statute declared to be a felony, the offender cannot be entitled to this immunity.

The statute under which this action is brought provides, substantially, that when any person intoxicated by liquor unlawfully sold to him shall do any injury to the person or property of others, the person so injured shall be entitled to a remedy by action to recover his damages of the person so selling the liquor. The statute then proceeds in these words: "and in case of the death or disability of any person, either from the injury received as herein specified, or in consequence of intoxication from the use of liquor unlawfully furnished as aforesaid, any person who shall be in any manner dependent; on such injured person for means of support, or any party on whom such injured person may be dependent, may recover."

The part of the statute preceding the words above quoted relates wholly to the remedy for a person injured by another in a state of intoxication. The portion of the statute quoted above refers entirely in its terms to such injured person, and does not refer to the person intoxicated. In order to make the statute embrace the case declared on, it would be necessary to insert after the words "such injured person," the words or such intoxicated person, so that it should read, any person who shall be in any manner dependent on such injured person, or such intoxicated person, c. I do not think that the court would be justified in interpolating into this statute, so highly penal in its character, such important words, by reason of any intention of the legislature which might be supposed to be inferable from the rest of the statute. If the legislature intended this, it has not said it. I do not think that, by any fair construction of the terms of this statute, it can be made in this particular to embrace the case alleged in the declaration.

In the defendant's argument the position is taken, that by the terms "may be dependent," in the statute, in intended persons who at the time of the injury are actually dependent on the plaintiff, or on whom the plaintiff was actually dependent, and that these terms do not embrace the cases in which the party injured, or the party intoxicated, were dependent on themselves, and became dependent on the plaintiffs by reason of the injury or intoxication. For instance: it might be that in this case Smithwick, at the time of the injury, was capable of supporting himself, and so was not dependent on the town; or he might, at the time of the injury, have had a son, able, and obliged, within the terms of our statute, to support him, and so not dependent on the town, and this support might afterwards be taken from him. In order to make the statute embrace this case, it would be necessary to insert after the words "may be dependent," the further words may afterwards be *86 dependent, — an enlargement of the meaning of the statute which I do not think the court ought to make. For these reasons I think the demurrer must be allowed.






Concurrence Opinion

The statute, in very general terms, imposes upon towns the duty of relieving and maintaining all persons within their limits, who may be poor and unable to support themselves. Gen. Stats., ch. 74, sec. 1. The obligation thus created implies a correlative right, in favor of all persons, to be relieved and maintained in case they become unable to support themselves. This right exists in favor of the rich as well as the poor; and it makes no difference, so far as regards the obligation upon the town, whether a person be reduced to necessity by his own misconduct or fault, or by the wrongful or careless act of another, or by pure accident or misfortune. The obligation is imposed by a humane municipal law, as public and general in its character as the law which imposes the duty of raising a certain amount of money for the support of schools; and the corresponding right of support is of a nature hardly to be distinguished from the great mass of rights conferred by other public laws upon the inhabitants of the state: it is simply one of the benefits of good government and humane laws. The question is, whether this right of support at the public expense, thus secured to all by law, can be said to establish a relation of dependence between the citizen and the state, so as to bring the matter fairly within the meaning of ch. 3, sec. 3, Laws of 1870. The allegation is, that Smithwick became poor, and unable to support himself, on the very day the liquor was illegally furnished to him by the defendant; and it does not appear that he had received aid from the town before his disability, caused as there shown. In order, therefore, to hold the declaration sufficient, it must be held that the pauper law makes every one, rich as well as poor, dependent for support upon the town in which they live, within the meaning of the act of 1870. I am clearly of opinion that this cannot be so, and that, upon this ground, the demurrer must be sustained.

This is as far as we need go in the present case. It seems to me, however, that it admits of much doubt whether a legislative intent to include towns within the remedies of the act of 1870, with respect to their liability for the support of paupers, is to be found in the act.

In some sense, perhaps, all are dependent on public charity for support. Riches may take to themselves wings and fly away; misfortune and poverty may overtake those who have least reason to apprehend the calamities that await them: but the expense of furnishing support to one man, who has been thus reduced to want, may be no greater than the expense incurred in protecting the property of another against the violence of a mob. Indeed, the benefit is only a little more immediate and direct than the great mass of benefits secured to all by the due administration of general laws for the protection of life, liberty, and property. Whether a correct interpretation of the statute under consideration shows any other ground upon which the demurrer should be sustained, we need not now inquire.

Demurrer sustained. *87