Judson v. Parry

Fullerton, J. This is an action for personal injuries brought under section 2945 of the code (Ballinger). A demurrer to the complaint was. interposed and sustained, and, on the refusal of the plaintiff to' plead further, a judgment dismissing his action was entered. From this judgment the plaintiff appeals. In the complaint it is alleged, in substance, that on or about December 13,1901, the respondent, W. W. Parry, was engaged, as owner and proprietor, in the business of conducting a drinking saloon, at Tonasket, Okanogan county, state of Washington, in which intoxicating liquors were sold; that, on the day named, the respondent sold and delivered to one Frank Allen and one William Hughes [38] intoxicating liquors in such quantities that they became intoxicated, while in the saloon; and that, while so intoxicated and while in the saloon, said persons engaged in a fight with revolvers, during which one of such revolvers was dropped on the floor and discharged, the ball therefrom striking the appellant’s arm, passing through the same, and lodging in his shoulder, causing him a painful and permanent injury. It was further alleged that the intoxication of the persons named was caused by the liquor sold them by the respondent, and that the injury the appellant received was caused solely by the fact that such persons were intoxicated. The appellant also alleged that he was, at the time of the injury and at the time of the commencement of his action, a married man, the husband of Annie E. Judson. The demurrer to the complaint was sustained on the ground that the appellant had no legal capacity to sue, and the correctness of this ruling presents the sole question argued on this appeal. The statute on which the action is founded, material to the inquiry, reads as follows: “Every husband, wife, child, parent, guardian, employee, or other person, who shall be injured in person or1 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 own name, severally or jointly, against any person or persons who shall, by selling or’giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person . . .” Bal. Code, § 2945. This statute, as applied to the facts before us, seems to us so plain, clear, and free from ambiguity that construction can hardly aid in its understanding. “Every husband ... . who shall be injured in person ... by any intoxicated person . . . shall have a right of action in his . . . own name . . . against [39] any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person.” The appellant alleged that he was a husband, that he was injured in person by an intoxicated person, whose intoxication was caused by liquors sold him by the respondent. His allegations bring him within the strict letter of the statute, and we see no reason why he may not maintain his action. The statute is common to many states, and, so far as we are advised, none hold that an action cannot be maintained under it where the circumstances were similar to those shown here. Some of the cases permitting the action to be maintained are the following: English v. Beard, 51 Ind. 489; Eddy v. Courtright, 91 Mich. 264, 51 N. W. 887; Flower v. Witkovsky, 69 Mich. 371, 37 N. W. 364; Brockway v. Patterson, 72 Mich. 122, 40 N. W. 192, 1 L. R. A. 708; King v. Haley, 86 Ill. 106, 29 Am. Rep. 14; Bacon v. Jacobs, 17 N. Y. Supp. 323. The judgment appealed from is reversed, and the cause remanded, with instructions to overrule the demurrer. Mount, O. T., Dunbar, and Hadley, IJ., concur. Eudkin, Eoot, and Chow, JJ., took no part.