Paulson v. Langness

16 S.D. 471 | S.D. | 1903

Fuller, J.

This is an appeal from an order sustaining a demurrer to the complaint in an action by a widow to recover damages occasioned by the loss of her means of support resulting from intoxication produced by liquor sold to her hus band by the defendants, and by reason of which his life terminated. Confessedly, appellant’s remedy, if she has one, is to be found in chapter 72, Laws 1897, entitled ‘ ‘An act to provide for the licensing, restriction and regulation of the business of the manufacture and sale of spirituous and intoxicating liquors.” After stating, among other things, that she was the wife of Iver Paulson, whose death occurred on the 15th day of March, 1899 it is alleged in the complaint: ‘ ‘That for a long time prior thereto, and on said 15th day of March 1899, the defendants were engaged in business at Baltic aforesaid, and were engaged and interested in unlawfully selling intoxicating liquors as a beverage, namely alcohol and whiskey, and that prior to the last mentioned date, and up to the time of his death, the said Iver Paulson was in the habit of becoming intoxicated, and on that day was intoxicated, which was known to the defendants, their agents, clerks, and employes, and while in that state of intoxication, on that day, at Baltic, in the township, county, and state aforesaid, the defendants themselves, and by their clerks, agents, and employes did sell, furnish, and give to said Iver Paulson at successive times, and in different quantities, to be drank by him as a beverage, intoxicating liquors, namely, one pint of alcohol and one pint of whisky, which the said Iver Paulson thereupon drank, whereby he became and was and continued to be intoxicated to such an extent that he became disqualified and incapacitated from managing his team or caring for the safety of his person, > by reason whereof he received the injuries and lost his life as heretofore set forth.”

As a part of the legislative scheme for the regulation and restriction of the liquor traffic in this state, the wife is given a right of action against the licensed dealer and the sureties on his bond for any infraction upon her means of support occasioned by the disposal of intoxicating liquors to her husband. The obligation is “that he shall pay all damages, actual or exemplary, that may be adjudged to any person or persons for injuries inflicted upon him or them either in person or property, or means of support or otherwise, by reason of his,,selling, furnishing, giving or delivering any such liquor.” Section 6 c. 72, Laws 1897. Section 16 of the act provided, in substance, that, to recover the damages arising under this act, the wife may institute and maintain in her own name, an action on the bond of a licensed saloon keeper for injury sustained by the loss of support, and the money recovered shall be paid over for the use of herself and children. If the defendants ‘ ‘were engaged and interested in unlawfully selling intoxicating liquors as a beverage” without first having obtained a license, as required by the act, they are guilty of a misdemeanor punishable by fine or imprisonment; but the legislature has provided no remedy in the nature of an action for damages against illicit dealers for the loss of support caused by sales made by them. At common law the wife could not recover for the loss of support occasioned by the death of her husband, and, to bring the case within the statute creating both the right and the remedy, it must be alleged and proved that the defendants were licensed dealers. Consequently, the demurrer to the complaint, on the ground that the same does not state facts sufficient to constitute a cause of action, was properly sustained. By granting plaintiff leave to file an amended complaint within 30 days on the payment of $10 terms, any right of action she may have is not prejudiced.

The order appealed from is affirmed.