141 Mo. App. 229 | Mo. Ct. App. | 1910
This suit is prosecuted by a married woman against a dramshop keeper and his bondsmen to recover damages for the sale of intoxicating liquor to her husband, an habitual drunkard.
The petition is in four counts, but two were dis
Defendant was a licensed dramshop keeper in business at Sheffield, near Kansas City, but lived on a farm about two miles from his dramshop. The evidence of plaintiff tends to show that on account of ill health defendant spent most of his time on the farm and entrusted the management of the dramshop to his son; that the husband of plaintiff was an habitual 'drunkard who spent much of his time and wages in defendant’s dramshop; that plaintiff went to the place while her husband was there- drinking, and orally notified the defendant’s son who Avas there in charge of the business, not to sell her husband liquors, and that afterwards, on the occasions alleged in the first and fourth counts of the petition, sales- of intoxicating liquors Avere made to the inebriate husband, despite the notice.
The evidence of defendant differs in important respects from that of plaintiff, but the questions of law we are called upon to decide require us to consider the facts in the light most favorable to plaintiff. The part of .the instructions given at the request of plaintiff which the court at the hearing of the motion for a new trial found to be erroneous is as follows: “If they (the jury) believe from the evidence . . . that Stella Parley verbally notified the defendant or John Schmid, his son, if they find from the evidence he was his agent in charge of his said saloon . . . not to sell, give away or otherwise dispose of to the said William S. Farley any intoxicating liquors and that afterwards the said John Schmid, or his agents in charge of his saloon and dramshop . . . did sell,” etc.
The question in controversy is whether or not oral
Defendant invokes the rule that “where the statute requires notice without prescribing the method of service, personal notice is intended” (Ryan v. Kelly, 9 Mo. App. 396; Doyle v. Railroad, 113 Mo. l. c. 285; City v. Gallie, 49 Mo. App. l. c. 397), and points to the case of Eilke v. McGrath, 100 Ky. 537, decided by the Court of Appeals of Kentucky, as an authority directly in point. We find the Kentucky statute differs from ours in phraseology and meaning. There the wife is required to give a formal written notice to “the person so selling prior to the offense complained of.” Our statute does not say that the notice shall be written, nor does it specifically provide that it shall be given to the person making the sale. Though it provides for a penalty, the statute is not of the class called penal (Edwards v. Brown, 67 Mo. 377). It is highly remedial and we think should be reasonably, even liberally, construed in order that due effect may be given the beneficent intent it clearly expresses. [Pettis Co. v. DeBold, 136 Mo. App, 265.] The words “notified” and “notice” as employed in this statute are not to be considered as in any degree technical, but as synonomous with information, intelligence, knowledge. [Wile v. Town of Southbury, 43
Under this rule, the presumption should be indulged that defendant received the notice and, as a matter of fact, the evidence of plaintiff shows that he did receive it. The point that the notice is insufficient is purely technical- — too technical to defeat what appears to be a meritorious cause of action.
The first instruction asked by the defendant required the jury to find that plaintiff notified defendant “that her husband ioas an habitual drunkard, and- not to sell or give to William Farley any intoxicating liquors,” etc. The court gave the instruction, after striking out the Avords we have italicized. The statute (section 3017) does not require the wife to do more than to notify the dramshop keeper not to sell her husband intoxicating liquors. A case might be imagined where, in justice to the dramshop keeper, the warning-should be accompanied by a statement of the reason for giving it, but in the present instance, defendant’s agent could not fail to know the reason. Plaintiff’s husband made defendant’s saloon his loafing place; he was a wage earner, and when he drew his money, he spent practically all of it at defendant’s bar, leaving his wife and children in want. When plaintiff went to the dramshop to find her husband and told defendant’s son
The court struck out the italicized part of the instruction and gave it as so modified. The instruction as given sufficiently defines the term “habitual drunkard.” [Ishler v. Ishler, 81 Mo. App. 567; Glenn v. Glenn, 87 Mo. App. 377; Page v. Page, 43 Wash. 293.] We qiiote with approval the definition of the term in Page v. Page, supra: “To be a habitual drunkard a person does not have to be drunk all the time, nor necessarily incapacitated from pursuing during the working hours of the day ordinary unskilled manual labor. One is a habitual drunkard, in the meaning of the divorce laws who has a fixed habit of frequently getting drunk. It is not necessary that he be constantly or universally drunk, nor that he have more drunken than sober hours. It is enough that he have the habit so firmly fixed upon him that he becomes drunk with recurring frequence periodically, or that he is unable to resist when the opportunity and temptation is presented.”
Other points are made, but we shall dispose of them by saying the case was fairly tried, without substantial error, and that a new trial should not have been granted. Accordingly the judgment is reversed and the cause remanded with directions to enter judgment for plaintiff on the verdict in accordance with the views expressed.