Palmer v. Schurz

CORSON, J. This is an action by the plaintiff as widow of Henry C. Palmer, deceased, on a bond executed by the defendant Conrad Schurz, as principal, and the Western Surety Company, as surety, to recover on ¡behalf of herself and minor children damages 'for the loss of support caused by the ,death of her said husband. The action was 'tried to a jury, and verdict and judgment being in favor of the plaintiff, the defendants have appealed. It is alleged in the complaint, in substance, that the plaintiff is the widow of said Plenry C. Palmer, deceased; that she and her sai|d husband, Henry C. Palmer, were married in 1894, and resided ¡in this state as husband and wife until July 17, 1905, when her said husband committed suicide; that there were born to the plaintiff and her said husband six children, the oldest of which was 12 years of age; that all of said children resided and made their home with the plaintiff and her husband until the latter’s death, •and that at all the time after the marriage ¡of plaintiff her husband provided her and her children with the necessaries of life and support, and was their ¡only means of support prior to his death; that by his dqath they were deprived of their means of support, and that the support of each and all of said children since the death of her said husband ibas devolved upon her; that on the 17th day of July, 1905, and prior ¡thereto, the said defendant Conrad Schurz was a licensed retail liquor dealer carrying on said business in Davison county in ¡this state; that for the purpose of such business on or about the 23d day ¡of June, 1905, he, as principal, and — 286 — the' defendant Western Surety Company, as surety, executed and delivered to the state of South 'Dakota a licensed liquor dealer’s bond as required by statute, a copy ,of which is annexed, and made a part thereof; that the fifth and sixth paragraphs of the complaint are ,as follows: “That on and prior to the 15th day of July last, -the said Henry C. Palmer was addicted to the use of intoxicating liquors and in the habit of getting intoxicated, and during such time and on such date, or thereabouts, was intoxicated, and while so intoxicated, pud in the habit of • getting intoxicated, the defendant ,C'onrad Schurz, directly and indirectly, by himself, his clerks, agents and servants, did sell, furnish, give and deliver to the said Plenry C. Palmer, spirituous and intoxicating liquors to' be used by the said Palmer as a beverage, and the same vveie so used by him in the place of business of the said Conrad Schurz at Ethan and elsewhere, and by reason of the use of such liquors the said Palmer became intoxicated, and continued in a state of intoxication up to the time of his death, and his mind gave way and he became impaired (and despondent, and did, on the 17th of said month, while in such condition, induced and caused by the use of such intoxicating liquors, so sold and delivered to him b}f the said Schurz, take his own life; that by reason of the death of said Palmer tire plaintiff arid her said minor children have been left without means of support other than (that obtained by the personal exertions of the .plaintiff, and by reason of the facts hereinbefore set forth the plaintiff has been damaged in the sum of $2,000.' no part of which has been paid and all of which is now due. Wherefore, the plaintiff demands judgment against the said defendants jointly and severally for the sum of two thousand dollars ($2,000.), together with the costs and disbursements of this action.” Upon the case being called for trial the defendants objected to the admission of any evidence under the complaint, for the reason that it does not state a cause of action, in that it is (not alleged in the complaint that the defendant Schurz ¡or luis- agents, servants, or employees sold to said Henry C. Palmer intoxicating liquors when he was intoxicated on or about the time the act complained of Was iconimitted; that it is nowhere alleged in said complaint that said' Palmer Was under the influence of liquor at the — 287 — time lie committed suicide; that the said chapter of the Code under which this action is brought' is unconstitutional, in <that it does not contain any title and the act itself contains more (than one subject; that the bond set forth upon- which the action is based is not such a (bond as is contemplated by the statute or that -the same w'as approved by the county commissioners of filed with the county auditor, and that it does not appear from said complaint that the defendants were ever forbidden in writing to «sell liquor to the said Henry C. Palmer or that the defendant was ever notified in writing that said Palmer was in the habit of getting intoxicated. These objections were overruled by the court, and its ruling in our opinion was correct. The first objection is not tenable, for the reason that it is alleged in the complaint that the defendant Schu-rz sold said Palmer liquor on July 15th and during the week prior thereto^ when he was intoxicated, and that “he continued in a -state of intoxication up to the time of his death,” and that he committed suicide on July 17th. The second objection is untenable for the reason that section 2849, R-ev- P°l- Code, .under which this action was instituted, provides : “On the trial of any suit under the provisions of this article, the cause and .foundation (whereof shall be the acts done or injuries inflicted by a person under the influence of liquor it shall only be necessary to sustain the action, to prove that the defendant, or defendants, sold or gave away the liquors to the person so intoxicated or un-dqr the influence of liquor, whose acts or injuries are complained of, on that day or about that time when said acts were committed, or said injuries were received.” It will be noticed that it is alleged in the complaint that the sale of intoxicating liquor to said Palmer was made to him on the 15th day of July, and that he continued to be intoxicated up to the time of his death. This allegation in our opinion brings the case within the time specified in the statute as “on that day or about that time when said acts were committed or said injuries were received.” Kerkow v. Bauer, 15 Neb. 150, 18 N. W. 27. The contention- of appellant that -the' complaint failed to allege that the defendant Schnrz was notified not to -sell liquor to- the husband of the plaintiff when intoxicated is not tenable for the — 288 — reason .(that a. sale to-a-minór- or-intoxicated perjson'is -illegal, and no notice*to;-the party.-selling- is required;:■■ And such fe-eem-s to be .the ¡condition of the -bond-as, it is recited .therein-.“that said-principal has covenanted and agreed and doth hereby covenant and' agree as follows,- to-iwit, that-he -will -not- directly or indirectly. % * ■* at any time sell* -furnish;, give or -deliver any ¡spirituous * * * liquors to a minor or to any-adult -person whatever who-is at the-time intoxicated.”'. ' ' " Section 2844 w-ats- .afriehdéd by chapter .165, 'p. 190, o-f the laws ■of 1903, by including in' unlawful"isales without notice “any person in the habit of getting intoxicated.” But the'section giving the form of bond in the Revised Code of ^903 was not changed to correspond with the amendment. This change is immaterial in this case, as the court /did not -submit the issue as to a person “in the habit of getting ‘intoxicated” to' the jury. ' The contention of the appellants- that the act is unconstitutional has been determined -against -their contentions by this court in die cases of Garrigan v. Kennedy, 19 S. D. 11, 101 N. W. 1082, and Stafford v. Levinger, 16 S. D. 118, 91 N. W. 462, and we do not deem it necessary to further consider that .question at this time. The contention of the appellants that the complaint is insufficient for the-reason that it is not alleged therein that the bond was approved and filed iis not tenable for the reason that the following indorsement appears upon the said bond which is a part of the complaint: “I hereby certify that the within bond was approved by the board -of comity commissioners of the county of Davison and state of South Dakota, dated the 30th day of June, 1905. O. D. Steams, County Auditor.” This in our opinion was a -sufficient compliance with the statute to entitle the bond to be received in evidence. It is further contended -that the court erre-d in charging the jury that it was not necessary that Palmer should be intoxicated when he committed suicide. This instruction is in accord with the decision of this court in Garrigan v. Kenned}'-, supra, in which this court said, “Whether Garrigan was intoxicated at the time he committed suicide or not was not material, provided his suicide — 289 — was .the result of his previous intoxication.” See, also, Stafford v. Levinger, supra. It is next contended by the appellants that the court erred in instructing the jury that the plaintiff could recover for her ¡children although she might not be entitled to recover for herself. But this instruction is ¡sustained by section 2849, Rev. Pol. Code, in which it is provided that “it shall be Segal for any married woman or any person at her request to institute and maintain in her own name a -suit on any such bond mentioned in this article for all damages sustained ‘by, her or by her ¡children on account of such traffic, and the money thujs collected shall be paid over for the use of herself and her .children.” As the action is based wholly upon the statute, the plaintiff was clearly entitled to recover the damages sustained by !her or her children under the provisions of that section, and if for any reason the jury might be of the opinion that plaintiff herself was not entitled to recover, still she was authorized to recover the damages sustained by her children.. The cases cited by the learned council for appellants arose under Codes making different provisions in regard to the ¡parties to the action, and are therefore not applicable to the case at bar. It is further contended that the court erred in stating to the jury that “Nobody here is entitled to anything but their legal rights, and that is all anybody is asking for.” The remarks of the court were general, applicable alike to both parties, and we are unable to discover .that the defendants were prejudiced by this statement.. It is further contended by the appellants that it was error for the court to allow testimony to be given by the witnesses as to whether or not Pialmer was intoxicated, for the reason that such questions call for conclusions of the witnesses. But clearly there was no error in this ruling of the court, as it seems to be well settled that such questions are proper in cases of this kind. In 17 Cyc. 135, the law as to such evidence is thus stated: “A witness may state whether a person was intoxicated and the extent of his intoxication; and whether he had been drinking or just recovering from a state of drunkenness.” Dozier v. State, 130 Ala. 57, 30 South. 396; People v. Monteith, 73 Cal. 7, 14 Pac. 373; — 290 — Dimick v. Downs, 82 Ill. 570; Chicago City R. Co. v. Wall, 93 Ill. App. 411; State v. Cather, 121 Iowa, 106, 96 N. W. 722; Campbell v. New York Fidelity Co., 109 Ky. 661, 60 S. W. 492; Edwards v. City of Worcester, 172 Mass. 104, 51 N. E. 4471 People v. Sehorn, 116 Cal. 503, 48 Pac. 495; People v. Packenham, 115 N. Y. 200, 21 N. E. 1035. The counsel for appellants have assigned as error numerous rulings of the court in the .admission and rejection of evidence, but after a careful examination of the same we are of the opinion that there is not sufficient merit in either of these assignments of error to require a separate -discussion, and the court committed no error in the admission or rejection of evidence which would entitle the appellants to a reversal of the judgment. A motion for a new trial w,as made, one of the grounds of which was -newly -discovered evidence, and it is contended by the appellants that the court erred in not granting a new trial upon the grounds stated. In Axion Min. Co. v. White, 10 S. D. 198, 72 N. W. 462, this- court said: “Except -under unusual circumstances a new trial will not be granted on the grounds of newly discovered evidence which goes only to discredit or impeach a witness, or which is merely cumulative.” Scheffer v. Corson, 5 S. D. 232, 58 N. W. 555; Eongley v. Daly, 1 S. D. 257, 46 N. W. 247; Gaines v. White, 2 S. D. 410, 50 N. W. 901. The granting or refusing of a new trial upon the grounds of newly discovered evidence is largely in the discretion of the trial court, and unless there h-as been a manifest abuse of (such discretion this court will not review the action of the trial court upon such motion. And unless such evidence would probably produce a different result upon a new trial a new trial should- be denied. Wilson v. Seaman, 15 S. D. 103, 87 N. W. 577; Oberlander v. Fixen & Co., 129 Cal. 690, 62 Pac. 254. In -the view we take of the case it will not be necessary to set out the affidavits introduced on the part of the -appellants in support of their motion for ¡a new trial, as in -our opinion no useful purpose would he served by reproducing them in this -opinion. It is sufficient to say that the evidence sought to be introduced on a new trial -was not of a nature calculated to produce a different re291 .suit on .another trial if competent ’.or admissible, as it tended simply to contradict the evidence of the plaintiff and as showing (that the deceased shortly prior to his death entertained a feeling of hostility to his wife. In our opinion there was no abuse'of the 'court’s discretion in denying the motion for a new trial. Finding no error in the record, the judgment of the circuit court is affirmed.