16 S.D. 118 | S.D. | 1902
This is an action by the plaintiff, as widow of George Stafford deceased, upon a bond given by one Henry Levinger as principal, and the other defendants as sureties, to recover damages sustained by her and her minor daughter in their means of support by the death of-the husband and father, as a result of intoxication • produced by liquor sold to him by the defendant Levinger. The case was tried to a jury, resulting in a vefdict in favor of the plaintiff. Upon motion of the defendants, a new trial was granted, and the order granting the same is in part as follows: “This motion is granted upon
It is insisted on the part of the respondents, in support of the order of the court granting the new trial, that the action is in effect au action to recover damages for the death of the husband, and that such an action is not authorized by the statute of this state or by the common la w. The appellant contends that the action is one for damages for the loss of support for herself and minor child, caused by the death of her husband. We are of the opinion that the appellant is right in her contention. Section 16, c. ? 2, of the session laws of 1897, provides, among other things, as follows: “The damages in all cases arising under this act together with the costs of suits, shall be recovered in an action before any court of competent jurisdiction, and in any case where parents shall be entitled to such damages, either the father or mother may sue alone therefor, but the commencement of suit and recovery by one of said parties shall be a bar to a suit brought by the other. And it shall be lawful for any married woman or any other person at her request to institute and maintain in her own name a suit on any such bond mentioned in this act for all damages sustained by her or by her children on account of such traffic, and the money
It is contended on the part of the respondent that it was not the intention of the legislature to suppress the sale and use of intoxicating liquors, for the reason that the • act itself authorizes the sale, and provides for licensing the same. But while this may be so in a general sense, by section 11, as we have seen, every licensed saloon keeper is prohibited from selling to persons accustomed to becoming intoxicated or who are intoxicated; thus showing clearly that it was the intention of the lawmaking power to suppress the sale of intoxicating' liquors to a class of persons liable to be injured by its sale.
Counsel for respondent rely very largely upon the decis
These views lead to the conclusion that the learned circuit ^court was in error in granting a new trial, and the order grant ing the same is reversed.