130 Mass. 167 | Mass. | 1881
A single question of law, which is common to all these cases, is presented by this bill of exceptions. There is another question applicable to but one of them.
The question which is common to all is this: The St. of 1875, c. 99, forbids any person to sell or to give intoxicating liquor to any minor, or to allow a minor to loiter upon the premises where such sales are made, under a penalty prescribed by the statute; and the precise question of law presented is, Can the same party be liable for the several penalties, for selling, giving, and permitting to loiter on the same day ?
This must depend upon the facts proved. He is liable for selling to a minor; if the sale is proved, that liability is fixed. If, upon an independent occasion, he gives to a minor, his liability for that offence is fixed; and the fact that he has done another and different wrong, although committed about the same time, cannot relieve him from liability for this wrong. The same remark is applicable to the acts which render him liable to still another penalty. It would be an extraordinary weakness of the law if a party could plead one violation of the law as an exemption from liability for other and different violations. It will be observed that more than one penalty cannot be recovered
The other question, which relates only to the third case, arises from the refusal of the presiding judge to give the instruction asked for by the defendant. The plaintiff is the mother of the minor. The statute authorizes the suit to be brought by the “parent or guardian.” The instruction asked for was, “that, in the absence of evidence that the boy had no father, and of evidence showing why such father did not or should not bring such suit, she could not maintain this action.” We think it was not error to refuse this instruction. The plaintiff proved herself to sustain such a relation to the minor as the law required her to prove, in order to entitle her to recover. The action is given to the parent, not to the father. The court cannot know judicially that there is a father, or even that there ever was a legitimate father, and prima facie, at least, the party who proves such a relation to exist as authorizes the action is entitled to maintain it, until something appears which tends to defeat the right. It does not appear in this case that the plaintiff is, or ever was, under coverture. If the fact that there is a father living would defeat the action, — and upon this question we give no opinion, — we are clearly of opinion that such fact is not to be presumed to exist without proof.
Exceptions overruled.