156 Ind. 470 | Ind. | 1901
Action for damages alleged to have been sustained by appellant by reason of having been' deprived of her means of support by the wrongful act of the appellee. The complaint was in a' single paragraph, to which a demurrer was sustained for want of facts. Judgment for appellee followed. The error assigned presents the question of the sufficiency of the complaint, the material allegations of which were 'as follows: That on August 8, 1892, the plaintiff was married to Fred Homire, and has ever since been, and now is, his legal wife; that as such wife she was dependent upon her said husband for her support and maintenance prior to and until June 8, 1898; that on June 8, 1898, the defendant, John H. Halfman, who was then and there engaged in selling, bartering, and giving away intoxicating liquors in the city of Lebanon, Indiana, and engaged in what is commonly known as the saloon business, did then and there wrongfully and unlawfully sell to, give away to, barter, and furnish to the plaintiff’s said husband a quantity of intoxicating liquor, plaintiff’s said husband being then and there in a state of intoxication, as the said defendant then and there knew at the time when he furnished such liquor to the said Fred Homire; that said
The action is founded upon §20 of “An act to regulate and license the ‘sale of spirituous, vinous, and malt, and other intoxicating liquors,” etc.; approved March 17, 1875, which is as follows: “Every person who shall sell, barter, or give away any intoxicating liquor in violation of any of the provisions of this act, shall be personally liable, .and also liable on his bond filed in the auditor’s office, as required by §4 of this act, to any person who shall sustain any injury or damage to his person or property, or means of support, on account of the use of such intoxicating liquors, so sold as aforesaid, to be enforced by appropriate action in any court of competent jurisdiction.” §7288 Burns 1894, §5323 R. S. 1881. Section 15 of said act of 1875 (Acts 1875, s. s. p. 55) is in these words: “Any person who shall sell, barter, or give away any spirituous, vinous, or malt liquors to any person at the time in a state of intoxication, shall be deemed guilty of a misdemeanor, and, upon conviction
It was held by this court in Mulcahey v. Givens, 115 Ind. 286, 288, that §20 is to be construed as if it read: “Every person who shall sell, barter, or give away any spirituous, vinous or malt liquors to any person at the time in a state of intoxication, shall be personally liable, and also liable on his bond * * * t.o any person who shall sustain any injury or damage to his person or property, or means of support, on account of the use of such intoxicating liquors. As thus construed, the right to prosecute a civil action under that section for the sale of alcoholic liquors to a person in a state of intoxication was neither abridged nor taken away by the subsequent enactment of §2092, above set out.”
Upon the question before us, the case of Beers v. Walhizer, 43 Hun 254, is directly in point. The averments of the complaint in that case were substantially the same as in the one at bar. The court there said: “The only argument presented by the defendant, in support of the ruling at the circuit, is upon the facts as stated in the complaint,. [It is said that] It does not appear that the loss of means of support sustained by the plaintiff was the direct result of the intoxication; that the arrest, trial, and conviction of the plaintiff’s husband by the officers of the law, and which resulted in his imprisonment, was the cause that produced that result, and was wholly independent of the intoxication produced by the liquor sold by the defendant George, and for that reason no cause of action was alleged against them within the provisions of the said act. The homicide committed by Beers was a crime punishable by imprisonment, and his arrest, conviction, and sentence was a result to be anticipated) and, as a matter of course, by the force and operation of the law of the land. The conviction of Beers was not the cause of his imprisonment, but was the result of the crime which he perpetrated in killing Banfield, and that act was the direct and only cause in the eye of the law for
It was said in McCarty v. Wells, 20 N. Y. St. 630, “The question was not whether tbe death of tbe deceased was tbe natural, reasonable, or probable consequence of the defendant’s act; but it was enQugb' if intoxication, caused in whole of in part by liquor sold by tbe defendant, was the cause of tbe death of tbe plaintiff’s husband, if by reason thereof tbe plaintiff’s means of support were injuriously affected.” '
The rule is laid down in many cases that an action may be maintained under'similar statutes for loss of means of support, when'occasioned in whole or in part by sucb sales. If the means of support are lessened, and this result can be traced to tbe sale of intoxicants, there is a right of recovery for sucb loss, as in case of lessened ability to labor, and loss of attention to business. Wightman v. Devere, 33 Wis. 570; Hutchinson v. Hubbard, 21 Neb. 33, 31 N. W. 245; Volans v. Owen, 74 N. Y. 526, 30 Am. Rep. 337; Schneider v. Hosier, 21 Ohio St. 98. So, where sickness or insanity is tbe result of tbe intoxication. Mulford v. Clewell, 21 Ohio St. 191. And where expenses are incurred for care and medicál attention. Wightman v. Devere, supra. And where tbe husband was robbed while intoxicated, tbe wife was allowed to sue. Franklin v. Schermerhorn, 8 Hun 112. And, so, where tbe husband spends tbe wife’s money for drink. McEvoy v. Humphrey, 77 Ill. 388. And tbe mother was allowed to recover for injuries where tbe son overdrove her horse on account of drink. Bertholf v. O’Reilly, 8 Hun 16. Tbe mere spending by the' husband of bis own money; it has been said, will give a right of ac
These authorities and many others which might be cited seem to meet every objection which can be taken to the complaint in this case. In our opinion, a sufficient cause of action was stated, and the court erred in sustaining the demurrer. Judgment reversed.