Strong v. Thompson

POLLEY, J. Plaintiff brings this action for the recovery of damages for the loss' of support for herself and children occasioned by the sale of intoxicating liquor to her husband. The complaint alleges that the defendant Thompson is a duly and regularly licensed retail liquor dealer, and. that the defendant Northern Casualty Company is the suret3'' on defendant Thompson’s liquor license bond; that plaintiff is the wife of Leon Strong, and that they have five children, all under the age of 12 years; that the said Leon -Strong is a, person in. the habit of becoming intoxicated, and- that, while in the habit of becoming intoxicated, the defendant Thompson sold and gave to him intoxicating liquors; that, except for the said illegal sales- of intoxicating liqiuors, said Leon Strong is an able-bodied man and capable of contributing at least $1,500 per year to the support of plaintiff add her said children; that, prior to- the said sales1 of intoxicating liquor to her said husband by defendant Thompson, he did support and maintain the plaintiff and her said children accoring to their [3] station in life; but that, since the said sales of liquor to plaintiff’s said husband, and because of such sales, plaintiff and her said family have 'been deprived of their said, support, to- her damage in -the sum of $3,000. Defendants demurred to the complaint on the ground that it 'does not state facts sufficient to constitute a cause of action. From an order overruling said' demurrer, defendants appeal. Under the provisions of section 2844, Pol. Code, as amended by chapter 247, Laws of 1909, it is unlawful for a licensed liquor dealer to sell or give intoxicating liquor to a person who is in the habit of becoming intoxicated, and, by the provisions of section 2849, married women are authorized, to maintain actions on behalf of -themselves and children for the recovery of damages resulting from such unlawful sales. [1-4] It is contended by appellants that: “The complaint does not allege the husband of plaintiff was intoxicated at the time of the sale. It does not allege that he became intoxicated at the time of said s'al-e, or any time thereafter. It does not allege that he became incapacitated and unable to support the plaintiff by reason of said sale or for any other reason. If does not allege that the failure to suppprt the wife was due to any 'disqualification of the -husband.” In support of such contention, appellants cite and rely upon Campbell v. Johnson, 25 S. D. 458, 127 N. W. 468. But we are unable to see where anything said in that case supports appellants’ contention. The judgment in that case was reversed because there was no evidence to -show the earning capacity lotf the plaintiff’s husband or to show 'how much he contributed to the support of plaintiff prior to the alleged illegal sales, nor to- form a basis upon which the jury coul-d estimate the -damage sustained by plaintiff. In this case, the complaint states the amount that plaintiff’s 'husband contributed to her support prior to- the said illegal -sales, and that he failed to contribute anything at all after such sales. These allegations are sufficient to support proof of these facts. It is wholly immaterial whether plaintiff’s husband was intoxicated at the time of the -alleged illegal sales, and it is equally immaterial whether such sales resulted in his intoxication. It is sufficient, under the statute, if plaintiff’s said husband- was in the habit of [4] becoming intoxicated at the time said illegal sales were made, and! that damage thereby resulted to plaintiff. It is not necessary to allege in terms that plaintiffs husband became .incapacitated to support her because of the alleged illegal sales, or that he became, disqualified to support her because of such sales. The allegation that his failure to support her resulted from such illegal sales is sufficient. In our opinion, the complaint states a cause of action under the statute. The order appealed from is affirmed.