Smith v. Wilcox

47 Vt. 537 | Vt. | 1875

The opinion of the court was delivered by

Wheeler, J.

This statute was enacted to compel those who will hazard causing damage by unlawfully furnishing intoxicating liquors to others, to stand to the risk, by holding them liable for the damage to those who may suffer it. It created a remedy for wrong where there was none before, and is, on familiar principles, to be liberally construed toward effectuating its purpose. The liability was limited to injuries wilfully committed, for the reason, probably, that such injuries would be traceable, generally, in some degree, through the inflamed passions and perverted judgment of the intoxicated person who committed them, to the unlawful act that produced the intoxication, and not for the purpose of confining it to deliberate acts of sober judgment. The wilfulness taken hold of by the statute, is such as a drunken person may have, and that only could have been intended. If that of a sober person had been intended, no intoxicated person could have it, and the statute would not apply to anything. If the act is the result of such capacity for determining what he will do as the intoxicated person has, it is within the meaning of the statute. The presumption, in the first instance, always is, that a person intends to do what he does do, so far as he can intend. Accordingly, proof that an intoxicated person committed an injury, if no excuse or justification appears out of the circumstances, is sufficient from which to find that he did it intentionally or wilfully, according to his capacity ; and such proof will make out this part of a case under this statute, unless some excuse or justification is made to appear by way of defence from other circumstances. The statute makes the seller of the liquor liable in the same form of action that the intoxicated person is, and provides for joining them in the same action ; and no reason is apparent why the rule of evidence as to proof of the injury, should not'be the same for each, whether sued jointly or separately. It may be that a special plea would be necessary for the person committing the injury, and not for the seller of the liquor in some cases ; but there is no question of that kind here.

The word injury, in the statute, was, doubtless, used in the sense of unlawful damage or hurt; and, plainly, anything done in lawful self-defence, would lay no foundation for an action on the statute. But the law allows persons to use against others such means only as are necessary for self-defence. Resort to a deadly weapon is not necessary, adequately, except to avert impending death or enormous bodily harm. Foster’s Crown Law, 273; 1 Hawk. P. C. ch. 28; 4 Bl. Com. 184; State v. Patterson, 45 Vt. 308. Whatever of violence there may be in any case, beyond what is fairly necessary, is unlawful and actionable. Buller N. P. 18; 2 Greenl. Ev. § 95; Harrison v. Harrison, 43 Vt. 417. The correctness of the charge of the court in this case, that if Orozier could get himself out of the way aud save himself short of resorting to a deadly weapon, then the use of one was not necessary for self-defence, is, in view of these principles, self-evident. And the submission to the jury to find’ whether the act done by him was done designedly or purposely, and whether it was done without justification, as these questions were submitted, left it to them to decide on proper considerations whether the injury was wilfully committed ; and no error in the charge or refusal to charge, is apparent.

The statute as to certifying on executions, applies to'all actions. founded on tort, aud to some others. This action is founded expressly on the sale of intoxicating liquors contrary to express statute.. There can be no fair question but that it is of the class of actions to which the statute as to certifying,, applies. This being the case, whether a certificate is to be granted, and to what extent, must rest on the finding of facts and discretion of the court in each case, and cannot be made ground for legal error by exception. The point made as to the constitutionality of the statute has not been urged, and needs no consideration here.

Judgment affirmed.