63 W. Va. 541 | W. Va. | 1908
Lead Opinion
Assigning as grounds of error the overruling of a demurrer to the declaration, a motion tp set aside the verdict, motions to exclude the evidence, objections to the introduction of evidence, the giving of certain instructions and refusal to give others, C. D. Gillaspie, a saloon keeper, complains of a judgment for $5,500.00, rendered against him and in favor of Diannah J. Pennington, by the circuit court of Tucker county, in an action brought under the civil damage statute, section 20 of chapter 32, Code of 1899, section 26 of chapter 32, as amended and re-enacted by the Acts of 1895, section 938, Code of 1906.
The plaintiff is the widow of A. J. Pennington who, it is alleged, was killed on a logging railroad, while in a state of intoxication, induced by use of liquors sold to Mm by the defendant; and the second count of the declaration demands damages for injury to plaintiff’s means of support, occasioned by the death of her husband, in the following terms: “The said A. J. Pennington became and was greatly intoxicated, and while so intoxicated, the said A. J. Pennington wandered along and over the log railway leading from the saloon of the said defendant at Brooklyn» Heights to the home of the said Pennington about one half mile distant from the said saloon, and while he the said Pennington was on said route, and on the night of the day last mentioned, he the said Pennington, while so intoxicated, and in consequence of his said intoxication, was run over by a log engine' on said railway, and killed, whereby the said defendant, by causing such intoxication and consequent death, injured the plaintiff in her means of support, all in consequence of the unlawful acts of the said defendant in furnishing and selling to the said A. J. Pennington intoxicating liquors aforesaid, whereby the said
The rulings of the court, respecting injury to the plaintiff’s means of support by the death of her husband, were directly contrary to principles declared by this Court in Pegram v. Stortz, 31 W. Va. 220. Denying the soundness and binding-force of that decision, the trial court ignored it. In that case, similar in all material respects to this, and governed by the same statute, this Court held as follows in point 3 of the syllabus: “In such a case, no damage can be given because of injury to her means of support by the death of her husband caused by his intoxication, the consequence of liquors illegally furnished or sold to him by the defendant.” In the opinion, the Court said it was obvious, from the amount of the recovery, viewed in the light of the evidence, that the verdict must have either included damages to the plaintiff’s means of support by reason of the drowning of her husband, or what are called exemplary damages; and proceeded upon the inquiry as to whether either of these two matters constituted an element of damages recoverable under the statute, 'and returned a negative answer to both propositions. As to the latter, the decision has since been overruled in two cases, Mayer v. Frobe, 40 W. Va. 246, McMaster v. Dyer, 44 W. Va. 644; but as to the first, namely, that recovery cannot be had for injury to means of support by reason of the death of the party to whom illegal sales have been [made, it has not been overruled or in anjr way questioned by any subsequent decision. That the decision has been overruled as to one of
Though it is insisted that the statute has been materially changed since the decision in question was rendered, we do not think it .has. Section 16 of chapter 107, Acts 1877, under which Pegram v. Stortz arose, required the service of a notice, (since dispensed with,) and then provided as follows: “And thereafter, if the person so served with such notice shall, by himself or another, sell or furnish such liquors to the person named in said notice, and by reason thereof the person to whom such liquor is sold or furnished shall become intoxicated, and, while in that condition, do damage to another, or shall, by reason of such intoxication, injure any person in his or her means of support who may have the legal right to look to him therefor, upon due proof that such liquors were sold or furnished as aforesaid, and that the person mentioned in said notice was, at the time of the service thereof, in the habit of drinking to intoxication, an action may be maintained by the husband, wife, child, parent or guardian of the person mentioned in said notice, or other person injured by him as aforesaid, against the person selling or furnishing him such liquors, as well as for all such damages as the plaintiff has sustained by reason of the selling or giving of such liquors.” The same statute as amended and re-enacted by section 20 of chapter 29 of the Acts of 1887, and the Acts of 1904 and 1905, provides as follows: • “Every husband, wife, child, parent, guardian, employer 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, habitual or otherwise, of any person, shall have a right of action in his or her name severally or jointly, against any person who shall, by unlawfully selling or giving intoxicating liquors, have caused intoxication, in whole or in part, of such person or persons.”
Thus amended, the statute is simplified, stripped of verbiage, and dispenses with notice as a prerequisite to a cause of action, but, in other respects, remains the same in meaning
The demurrer was general, denying the sufficiency in law of the entire declaration, not special, challenging the sufficiency of each count. Therefore, the insufficiency of the second count does not vitiate it as a whole. The first count contains some allegations that are said to be improper, but if it alleges sufficient matter of fact to warrant a recovery, all immaterial allegations may be disregarded as surplusage, and all injury therefrom at the hands of the jury was preventable by objection to evidence offered to prove them and by application for proper instructions, forbidding allowance of damages based thereon. Pegram v. Stortz, 31 W. Va. 220; Thomas v. Electrical Co., 54 W. Va. 395; Patton v. Elk River Co., 13 W. Va. 427. Inconsistency between the two counts in some slight particulars is complained of, but this amounts to nothing more than variation of statement of details, not in any sense, repugnant to the rules of pleading. A charge of insufficiency is based on the use of the word “furnishing” instead of the statutory word “giving,” the statute making the licensee liable for either selling or giving intoxicating liquors in certain cases. The allegation is that the defendant sold to the deceased, and then that the defendant was “so furnishing” liquors to him, and later “sold and furnished” him liquors. The averment of unlawful selling is amply sufficient, and there is nothing in this objec
The action Avas commenced July 23, 1906, and the declaration legally claims damages for injuries for the preceding one year. Over the objection of the defendant, evidence tending to prove habitual drunkennéss on the part of the deceased XArior to the year for Avhich damages are claimed, and continuation thereof up until the sales complained of Averemade,
Plaintiff’s instruction No. 1 is complained of because it fails to limit the damages recoverable to those arising from sales made within one year prior to the commencement of the action. Such limitation should have been put on. An attempt to do so in another instruction is likely the reason the court“gave this one without it. But the other instruction, No. 11, was bad for another reason which will be stated, and should not itself have been given. Therefore, we conclude that said instruction No. 1 was improperly given. Plaintiff’s instructions Nos. 2, 3, 6, 7, 8, 9, 10 and 11 should all have been refused, because they predicate a right to recover damages upon the loss of life of the plaintiff’s husband, occasioned by the alleged illegal sales. Under the construction given the statute ,by the decision in Pegram v. Stortz, such damages are not recoverable. Exceptions to plaintiff’s instructions Nos. 4 and 5 are based upon the allowance by them of damages arising from sales made by the bar-tender of the defendant at his place of businesss because the declaration does not aver sales made by anybody other than the defendant himself. This objection is groundless. Sales made by the defendant’s clerk, agent or servant are deemed in law to have been made by him, and he is presumed to have had knowledge thereof. It would be extremely and unnecessarily burdensome to require persons, having occasion to sue under this statute, to specify and prove the particular agent or servant by whom each sale was made. It would be almost impossible to do so in many instances. Besides, no rule of practice requires it in other cases. “An indictment or complaint alleging an unlawful sale of liquor by defendant is supported by proof that he sold it by his clerk, . servant or agent.” 23 Cyc. 257, citing a number of authorities. The rules governing civil and criminal actions are, generally speaking, the same, and it is uniform practice in this state to prove sales by bar-tenders under indictments against licens
Defendant’s instruction No. 1 was properly refused because it inhibited the assessment of exemplary damages. His instructions Nos. 2, 8, 9 and 14, forbidding recovery of damages, occasioned by the death of of plaintiff’s husband, were improperly refused. His instructions Nos. 6, 7 and 13 related to an immaterial matter; the proximate cause of the death of plaintiff’s husband, and were therefore properly refused. His instructions Nos. 3 and 4 were properly refused.for the reason that they limit the recovery for injury to plaintiff’s means of support, thereby precluding recovery of exemplary damages. His instruction No. 16, denying right of recovery for injury resulting from sales not made by the defendant should obviously have been given. That it named the defendant personally is no ground of objection. The plaintiff could have had an instruction, defining C. D. Gillaspie as embracing, for the purposes of the sales and this action, his servants and agents. State v. Trail, 59 W. Va. 175, applies this principle. His instruction No. 17 was properly refused. It denied right of recovery for sales made by the agents or clerks of the defendant. His instruction No. 18, telling the jury that they could not find for the plaintiff, unless they believed, from the evidence, that the sales complained of were made in Tucker county, was properly refused. If the declaration in a civil action shows jurisdiction on its face, no exception for want of jurisdiction can be considered, unless it be taken by plea in abatement. Code, chapter 125, section 116; Snyder v. Philadelphia Co., 54 W. Va. 149. By his failure to raise this question in the manner prescribed by the Code, the defendant waived it. Osborn v. Taylor, 13 Grat. 120; Telegraph Co. v. Hobson Co., 15 Grat. 122; Quarrier v. Quarrier, 10 W. Va. 507; Middleton v. White, 5 W. Va. 572; Bank v. Gettinger, 3 W. Va. 309. Besides, the cause of action is no doubt transitory, and the place at which the sales
There is much general complaint in the briefs, founded on the admission of evidence that is said not to have been admissible, in addition to that which has been herein considered. But it is not specified-by incorporation in separate bills of exception, or particular reference thereto in the briefs. Under the rules governing procedure in this Court, we are not required to ferret out items of inadmissible evidence not specified. Enough has been said, however, to clearly- indicate to counsel and the court below what is admissible and what inadmissible, and, if care is exercised on the new trial, the danger of erroneous action in this respect will be very slight.
The sufficiency of the evidence to sustain the verdict is challenged, but, as the judgment has to be reversed and a new trial allowed, for the errors herein stated, this ground of exception will not be considered.
Reversed. JVew Trial Awarded.
Concurrence Opinion
(concurring):
1 concur in the judgment rendered in this case with very great reluctance. I do so only in deference to Pegram v. Stortz, 31 W. Va. 220, because, as a general rule, I respect and act upon the rule of stare decisis. That case holds that a widow bereft of support by the death of her husband caused by intoxication from liquor unlawfully sold cannot maintain an action against the seller of such liquor. As an original proposition I flatly demur to this holding. In that case Judge GREen’s argumentation seems to have been upon the line that the action given by Code, chapter 32, section 20, is only for the death of the husband, and as the common law gave no action therefor to anybody, therefore he concluded that this statute did not intend to give action to any of the kin of a man whose death came from intoxicating liquors unlawfully sold to him, there being, as he thought, no words expressly changing the rule of the common law. It is true that a person unlawfully wounded by another could sue that other while he lived; but that right of action in him during life died with his last breath, under the maxim of the common law, actio personalis moritur cum persona, a personal action dies with the person. After his death, the authorities all agree, that no action for damages for an injury resulting in the death will lie by common law on the said principle that a personal action dies with the person. 1 Am. &. Eng. Ency. Law (2ded.) 688. It takes a statute to give such action after death. The case of Pegram v. Stortz, supra, holds that no such action for death from sales of liquor can be maintained under the said Code statute. The case of Pegram v. Stortz seems to go on the idea that action under that statute is an action for the death dying with the person under the common law. But does not that case forget that this statute gives action to certain kinsmen of the dead man by reason oflossofsup2iortt Judge Green’s mind seems to have been running on the damage done to the deceased; whereas, this statute gives, for the first time, action- to certain kin of
Do not the widow and the child need support as well after the death of husband and parent as before? As the Maine court said in Gardner v. Day, 95 Me. 558, 50 Atl. 892: “We cannot agree to this proposition. We are unable to perceive any legal distinction, except in degree, between the temporary injury to a wife’s means of support through the husband’s inability to provide support by reason of some accident sustained while intoxicated, and the permanent injury suffered by her of the same nature by reason of the husband’s death, resulting from his intoxication. In either case the injury is to her means of support by reason of his intoxication. ” We quote from 6 Am. & Eng. Ency. Law (2d ed.) 54, as follows: “Death.— The question wheather there can be a recovery under the civil damage statute for the death of any person, caused by the intoxication of himself or of another, has not been uniformly decided. In general, if death is the natural and legitimate result of such intoxication, and the plaintiff is thereby injured in his means of support, he may recover for the death. Otherwise, minor and temporary injuries to the
Judge Green says in Pegram v. Stortz that our statute was borrowed from New York. It is almost identical in language with the New York statute. Before we adopted that statute it had received construction in that state by its court of appeals in Mead v. Stratton, 87 N. Y. 493, cited by Judge Green in Pegrem v. Stortz, 31 W. Va. p. 324, holding that a widow could maintain the action. The court said “The statute 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 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. The injury to the means of support was one of the main grounds of action, and when the party is deprived of the usual means of maintenance, which he or she was accustomed to enjoy previously, by or in consequence of the intoxication or the acts of the person intoxicated, the action can be maintained. It is evident that the Legislature intended to go, in such a case, far beyond anything known to the common law, and to provide a remedy for injuries occasioned by one who was instrumental in producing, or who caused such intoxication. * * * * If the injury which had resulted to the deceased in consequence of his intoxication had disabled him for life, or to such an extent as to incapacitate him for labor and for earning a support for his family, it would no doubt be embraced within the meaning and intent of the statute. That death ensued inconsequence thereof, furnishes much stronger ground for a claim for a loss of means of support; and a different rule in the latter case would make provision for the lesser and temporary injury, while that which was greatest and most serious would be without any remedy
This is a construction too strict, and we do not see why, even in all literal strictness insisted upon, the present case is not
It Avas contended in the argument that the fact that the statute Avas re-enacted in the same substance in 1904 and 1905, shoAvs that the Legislature must have intended to adopt, beyond recall by this Court, the construction given it in Pegram v. Stortz, and that this Court cannot overrule it, no matter how erroneous this Court might regard it. Now, I can see that that fact is persuasive as a rule of construction of the statute, a reason for holding to Pegram v. Stortz; but it is not absolute^ binding. To give it that effect Avould be to give the decision in Pegram v. Stortz the force of a Legislative act, just as much as if the Legislature had passed an • act reading, “Be it enacted by the Legislature of West Virginia, That, as held in Pegram v. Stortz, 31 W. Va. 220, a widow shall not have action for the death of her husband» caused by intoxicating liquor sold him. ” Legislation cannot be made in this implied manner in the face of the constitution, AArhich demands that it be done by act, having title and express enactment, and an enacting clause. That would give the Legislature judicial poAver. Construction of statutes belongs to the judiciary. I would overrule Pegram v. Stortz if the Court were unanimous, but not otherwise. There has been but one case giving such construction to the statute, and, as I understand Clark v. Figgins, 27 W. Va. 663, courts are more inclined to overrule one erroneous case than several.