Good v. Towns

The opinion of the court was delivered by Bowbll, J. The first point made by the defendants is, that the statute* gives a right of action, not to one dependent for support on the intoxicated person who dies or is disabled, but to one thus dependent on the person whom the intoxicated person kills or disables; and such is the construction given to a similar statute in New Hampshire. Hollis v. Davis, 56 N. H. But in Rich [414] ards v. Moore, heard at the January Term, 1882, in Eranklin County, this court held that the statute gave a right of action to one dependent on the intoxicated person, and we are not dis posed to overrule that decision. The next question is, What is the character of the dependency that gives this right of action ? Plaintiffs contend that a dependency in fact is sufficient though it may not be a legal dependency, and that here wás a legal dependency in the case of the child at all events. Defendants, on the other hand, contend that nothing short of a dependency that the party depended upon is legally bound to respond to is sufficient, and that here was no such dependency as to either plaintiff. As to the plaintiff Mary M. Good, it needs no argument to show that Peter Good was under no legal obligation to her to support her. His marriage to her was void; and as between the parties thereto it imposed none of the legal obligations of lawful matrimony. But as to third persons, a man who marries a woman and holds her out to the world as his wife, cannot discharge himself from liability for necessaries supplied her by proving a previous lawful marriage to another woman still living: Watson v. Threlkeld, 2 Esp. 637; Robinson v. Nahon, 1 Camp. 245. But he is not liable for necessaries furnished her after separation and ceasing to hold her out as his wife: Munro v. De Chemant, 4 Camp. 215. So in Norwood v. Stevenson and wife, cited in a note to Munro v. De Chemant from Andrews, 227, it was held that a plea by the husband that “ they were never joined in lawful matrimony,” was no bar to an action against him and his wife for her debt contracted when sole, for that a marriage de facto made him liable. As to the plaintiff Mary E. Good, she is an illegitimate child of the deceased; and as to such a child, it is clear that the common law imposes no liability on the father as such to support it. But he is liable on his express promise for its support. He is also liable on his implied promise, without an order of affiliation, provided he has adopted the child as his own and acquiesced in any particular disposition of it. But he may renounce the adop [415] .tion and' terminate the implied assumpsit. This is the result of the cases, English and American: Hesketh v. Gowing, 5 Esp. 131; Cameron v. Baker, 1 C. & P. 268; Nichole v. Allen, 3 C. & P. 36; Furillio v, Crowther, 7 D. & R. 612; Moncrief v. Ely, 19 Wend. 405. Otherwise than this, the father is not liable except he be made so by an order of affiliation ; and then his liability is not to the child, but is imposed by way of helping the mother or indemnifying the town. It is true, as contended, that the language of the statute is broad, “ in any manner dependentbut after all we think it should be construed to mean a legal dependency only, the same as though it read, “in any manner legally dependent.” If it is given great'u- scope than this, there would be great difficulty in administering it. There would seem to be no stopping-place short of including all possible cases of actual dependency, whatever the relation of the parties, and notwithstanding the absence •of even a moral obligation to support; and yet no one we presume would contend for so latitudinarian a construction of the •statute. Shall we then stop at the utmost limit of moral obligations ? But the law cannot determine what a moral obligation is, and takes no cognizance of them. Again, by what rule shall damages be assessed in cases where as here no legal right has •been lost ? This is not a question on which much authority can be adduced, but the case of Dickinson v. The North Eastern Railway Company, 2 H. & C., 735, is worth refering to. That was an action under the Civil Damage Act of 9 and 10 Yict. c. 93, which provides that the action shall be 'for the benefit of the wife, husband, parent and child of the person killed. Price contended that “ child,” as used in the statute, included an illegitimate child; that the legislature intended the right of action to be co-extensive with the moral obligation to support; and that the legal right to support could not be the test of what class of persons could maintain the action. But Pollock, C. B., said it was beyond all doubt that in the construction of that act the word [416] “ child” meant legitimate child only ; and a rule for a new trial was refused. The result is in both cases, judgment affirmed. Footnotes [*] “ When a person, by reason of intoxication, commits or causes an injury upon the person or property of another, a person who by himself, clerk, or servant, unlawfully sold or furnished any part of the liquor causing' such intoxication, shall be liable to the party injured for the damage occasioned by the injury so done,” etc. “ In case of the death or disability of a person, either from such injury or in consequence of intoxication from the use of liquors so unlawfully furnished, a person who is in any manner dependent on such injured person for means of support, or a person on whom such injured person is dependent, may recover from the person unlawfully selling or furnishing any such liquor the damage or loss sustained in consequence of such injury.” E. L. s. 3833.