Edwards v. Woodbury

Field, C. J. It was not necessary under any of the first six counts of the declaration to prove the averment of time as laid. [26] The only absolute legal limit is that the time proved must be within the statute of limitations applicable to the action. The defendant did not ask the court to order the plaintiff to file a statement of particulars, pursuant to the Pub. Sts. c. 167, § 61, nor did the defendant contend that he had been surprised at the trial by the evidence admitted by the court, and ask for time to obtain evidence to meet it. There are reasons, perhaps, why, in an action of this kind, great pains should be taken to secure to a defendant an opportunity to meet the case proved by the plaintiff, because the injuries to the plaintiff are not likely to be within the knowledge of the defendant; but the rules of law are the same in this as in other similar actions. Little v. Blunt, 16 Pick. 359, 365. Commonwealth v. Kelly, 10 Cush. 69. Commonwealth v. Wood, 4 Gray, 11. Sackett v. Ruder, 152 Mass. 397. Leatherbee v. Barrett, 152 Mass. 532. Knowledge on the part of the defendant that the plaintiff’s husband was accustomed to get intoxicated, or had been intoxicated within six months next preceding the sale of intoxicating liquors to him by the defendant, is not necessary to sustain an action under the Pub. Sts. c. 100, § 21. The statute does not make such knowledge a constituent element of the cause of action. See Commonwealth v. Julius, 143 Mass. 132.' Under the last count, a sale on one occasion of intoxicating liquor within the time alleged could be proved. Sackett v. Ruder, ubi supra. The cause of action is not within the Pub. Sts. c. 197, § 3. The allegations of the different counts in substance are that the defendant sold intoxicating liquors to Henderson J. Edwards, the plaintiff’s husband, to be drunk by him, which he drank, and thereby became intoxicated, and that the defendant thus caused his intoxication. This is not in terms an allegation that the defendant wholly caused his intoxication, and it is sufficient to support the action to prove that the defendant caused it in whole or in part, for this is the language of the statute. Bryant v. Tidgewell, 133 Mass. 86. If this is not such an action as is described in the Pub. Sts. c. 197, § 3, it has not been contended that the time within which the action may be brought is not six years next after the cause of action accrued. Pub. Sts. c. 197, § 1, cl. 4. Exceptions overruled.