87 N.Y. 493 | NY | 1882
This action was brought by the plaintiff, who was the wife of Charles Mead, deceased, to recover damages sustained in her means of support by the death of her husband in consequence of intoxication produced by liquor sold to him by said defendant Isaac J. Stratton, at the hotel kept by him, of which the said Margaret M. Stratton, the wife of said Isaac J. Stratton, was the owner; and which, it is claimed, she rented to her husband, or permitted to be occupied as a hotel, knowing that intoxicating liquors were to be and had been sold upon said premises.
The complaint alleges that in consequence of the acts of the defendants stated and set forth, and in consequence of the intoxication of the late husband of plaintiff, caused as aforesaid, plaintiff had been injured in her means of support and property.
The essential facts established by the verdict were that the defendant Isaac J. Stratton was the keeper of the hotel, and the deed was given to his wife who had general charge of the house, except the bar, but was cognizant of the fact that intoxicating liquors were sold there; that the deceased came to the house with a horse and buggy, drank intoxicating liquors several times there, and became so much intoxicated that he was helped into his buggy upon starting for home; that he must have fallen in his buggy, as he was found dead, with his knee caught tightly under the iron cross or foot bar, and his head over between the wheel and the wagon, so that his head was beaten by the spokes and otherwise injured; and that he left a wife and several children who were dependent upon him for support.
The statute (chap. 646, Laws of 1873) under which this *496
action is brought provides, that every husband, wife, etc., "or other person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication * * * shall have a right of action in his or her name against the person who shall, by selling or giving away the intoxicating liquors, cause the intoxication * * * and any person or persons owning or renting, or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable, severally or jointly with the person or persons selling * * * for all damages sustained and for exemplary damages." The statute cited provides for a recovery by action for injuries to person or property, or means of support, without any restriction whatever. Both direct and consequential injuries are included, and it was evidently intended to create a cause of action unknown to the common law, and a new ground and right of action. (Volans v. Owen,
There are some decisions in the Supreme Court of this State which bear upon the subject. In Hayes v. Phelan (4 Hun, 733), the opinion holds that the statute gave a right of action only in cases where it lies against the intoxicated person. This conclusion does not, however, appear to have been sustained by a majority of the judges constituting the General Term, and in a note to Dubois v. Miller (5 Hun, 335), an opinion of JAMES, J., is published, dissenting from the views expressed in Hayes
v. Phelan, and it is stated that BOARDMAN, J., concurred only in the result arrived at in the decision, and only two justices were present. In Brookmire v. Monaghan (15 Hun, 16), where the complaint asked damages only by reason of the death of plaintiff's husband, which, it was alleged, was caused by intoxication by liquor sold the deceased by the defendant, it was held that the complaint did not state a cause of action under the Civil Damage Act, and it was said that the court had heretofore decided, in Hayes v. Phelan, that *498
such damages are not recoverable under the act of 1873. The same question arose in the fourth judicial department in Jackson v.Brookins (5 Hun, 530); and it was there held, that where several persons became intoxicated, and engaged in an affray in which one is killed, his widow may maintain an action against the person who sold the liquor which caused the intoxication, to recover damages sustained by her for the death of the husband. The same doctrine is upheld in Smith v. Reynolds (8 Hun, 128). In Quain v. Russell (8 id. 319), in the third department, it was held by a majority of the court, that it was not essential to the existence of the cause of action, under the Civil Damage Act, against the vendor of liquors, that an action should also be maintainable against the intoxicated person, and it is sufficient if the wife has been injured in her means of support through the intoxication of the husband. The case ofHayes v. Phelan is referred to, and it is said that no such principle as is claimed in the last case was decided by the court. It will thus be seen that the decisions of the Supreme Court in this State are not entirely harmonious. In the State of Illinois it is held that the action will lie when death ensues. (See Schroder v. Crawford,
The judgment was right, and should be affirmed.
All concur, except RAPALLO, J., taking no part.
Judgment affirmed.