Carrier v. Bernstein Bros.

Given, J. 1 Appellants’ first contention is that the court erred in overruling defendants’ motion to strike the first count, or to require the plaintiff toi elect upon which count she would proceed, insisting that there is a misjoinder of parties, and of causes of action. Section 2630 of the Code of 1873 provides, as follows: “Causes of action of whatever kind) where each may be prosecuted by the same kind of proceedings,-provided that they be by the same party, and against the same party in the same rights, and if suit on all may be brought and tried in that county, may be joined! in the same petition.” Said section 1557 (Code, 1873), upon which the first count is based, gives to every wife who shall be injured, in person, or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, the right of action in her own- name [576] against any person who shall, by selling intoxicating liquors, cause the intoxication of such person, for all damages actually sustained, as well as exemplary damages, to be recovered by civil action in any court having jurisdiction thereof. It will be observed that the wife thus injured is the only proper person plaintiff in such an- action, -and that the right of recovery is to her, and to her alone, and for her own -exclusive benefit. Section 1539 (Code, 1873), upon which the second count is based, declares it unlawful for any person to sell intoxicating liquors- to- -any intoxicated person, or to any person who is in the habit of becoming intoxicated. It provides that any person violating this provision shall forfeit and pay to- the school fund the sum of one hundred dollars for each offense, to- be collected by action against him by any citizen in the county. “One-ha-lf of the amount so- recovered shall go to the informer, and the other half shall go- to the school fund of the county.” While it may be said that these causes of action may be prosecuted by the same kind of proceedings-, w-e think that they are not by the same party as plaintiff, nor in the same right. In the first count the plaintiff sues in her own name, and no other person could properly be joined with her a-s- plaintiff. The second count is not to- recover an amount due to her, but -a forfeiture payable to the scho-ol fund. The language of section 1539 is: “Any person- violating the provisions of this section shall forfeit -and pay to the school fund the sum of one hundred dollars for each offense.” In the second count plaintiff -does- not sue as wife, but as “citizen in the co-unty,” and as informer. Such an action might be properly entitled in the name of the citizen, as informer, for the use of the school fund of the county, naming it, as plaintiff. If it may be said that, because -of plaintiff’s right as citizen to- bring the action as in the second count, the two- actions- -are by the same party, surely it cannot be said that they are- in the [577] same right. The first is in the right as wife for dam • ages to her person, property, and means of support, and is a right existing solely and exclusively in favor of the plaintiff, for injuries, actually suffered by her. The second'is in the right of the county, not to. damages, but to the forfeiture to its school fund. The citizen prosecuting such an action as informer has no personal right of recovery. He cannot recover anything in Ms own right, and it is only when recovery is. had in favor of the school fund that the informer is> compensated by receiving one-half the .amount recovered. The judgment rendered on the verdict returned upon this second count is not in favor of the plaintiff, Mary E. Oarrier, but is against the defendants, “for the use of the school fund.” Mrs. Oarrier is not even named in that judgment, nor does it even provide that she shall receive one-half the recovery as informer. It seems to us quite clear that these two causes of .action are not in the same right. It is suggested that this case is not unlike those wherein judgment may be rendered in favor of the state for the use of the school fund of the county, when it is 'ascertained that the contract sued upon is usurious. Section 2080 of the Code of 1873 expressly authorized the court to render such a judgment in the suit on the usurious contract, and no action is required to be brought for the use of the school fund. The cases would be similar if the statute provided that judgment for forfeitures, under section 1539, might be recovered in an action under section 1557. It is only when all the suits may be brought and tried in the same county that they may be joined in the same petition. Now, it is true, because of the citizenship of the plaintiff and the residence of the defendants being Marshall county, these cases were properly brought, and tried in that county. Appellants insist that an. action under section 1557 must be brought in the county where some of the defendants reside, and that an action under section [578] 1539 must be brought in the county -where the liquor was sold, and that, it being possible that such action® could not be brought and tried in the same county, therefore they cannot be joined, even when the parties .all reside in the same county. The fault of this contention is in assuming that an action under section 1539 must be brought and tried in the- county where the liquor is alleged to have been sold. Said section provides: that the action may be “by any citizen in the county,” but does not provide that it must be brought and' tried in the- county where the liquor i-s alleged to have been sold. So far as the place of bringing and trying this action is concerned, there was no misjoinder-, but holding, as we do, that the two actions are not in the «ame right, it follows that there was a misjoinder of these causes of action, and that defendants motion to require plaintiff to elect upon which count she would proceed should have been sustained. 2 II. As already stated, the defendants pleaded compliance with chapter 62, Acts Twenty-fifth General Assembly, known as the “Mulct Law,77 as a defense. This plea the court disregarded throughout the trial, and instructed to the effect that the mulct law does not have the effect to repeal or supersede -s-aid' sections 1539 and 1557, and does not release any person violating said section from the liabilities therein mentioned. Of this action of the court appellants complain, and insist that the mulct law is a license law, and that, as against one who has complied therewith, “there is no civil action for damages, unless the sale- is to some prohibited person.” It is argued that sales made under the mulct law, except to prohibited persons, are legalized, and that there is- no liability under section 1557, except for illegal sales. The right of -action given in section 1557 i-s grounded upon the fact that injury has been sustained by reason of the intoxication of some person, and the remedy is against the [579] person, who, by selling the liquor, caused the intoxication. It is not questioned but that sales to minors, intoxicated persons, persons in the habit of becoming intoxicated, and knowingly to- those who 'have taken ¡any of the recognized cures for drunkenness, are unlawful. Prior to the enactment of the mulct law, only those holding permits could sell at all, and they only to others' than the prohibited classes, and for specified purposes, which did not include use as a beverage. The statute prohibits the business of keeping a place for the unlawful sale, or keeping for unlawful sale, of intoxi- ■ eating liquors, and provides for proceedings to abate such a place and business as a nuisance. Section 17. of the mulct law provides that compliance therewith shall “be a bar to- proceedings under the statute .prohibiting such business.” Such “proceedings” are the “certain penalties” that section 16 says may be suspended. ■Whether this bar may be pleaded to any other proceeding than for nuisance we do not determine, but it is certainly clear that it is no bar to the recovery of damages under section 1557. Section 19 of the mulct law* provides that “whenever any of the conditions of this act shall be violated * * * the bar to- proceedings- as provided in section 17 hereof shall cease to- operate as a bar.” If it be true, as alleged, and as found by the jury, that defendants sold intoxicating liquors to plaintiff’s husband, causing him to become intoxicated, idle, profligate, and neglectful of his business, and so as to- imp-air him in body -and mind, -and to render him unable to obtain remunerative employment, to the damage of the plaintiff, they surely violated the conditions of the mulct law, wherefore the bar ceased to> operate. Plaintiff, in an amendment, alleged that said sales -were made to- her husband by the -defendants, “wlro- knew at the time he had taken one of the recognized cures for drunkenness.” There- was no- evidence.to show knowledge as alleged, and therefore this allegation of the petition [580] was not presented to the jury. We do not understand appellants to contend that compliance with the mulct law would bar a recovery, in a proper case, under said section 1539, as in that case the sale must be to a minor, intoxicated person, or person who is in the habit of becoming intoxicated, which it is conceded would' be unlawful. We think there was no error in disregarding the plaintiff’s plea of the mulct law as a defense, nor in giving the instructions mentioned above. ' [4] 5 III. There was no error in overruling defendant’s motion-for more specific statement as to the time of the sales complained of. They were alleged to "have been made in the spring and summer of 1895, which was sufficiently definite. Appellants complain that, under the allegation that the defendants soldi the liquors, plaintiff was permitted to. prove that sales were made by their employes. This, evidence was admissible, under the pleadings, and the provisions of the statute. The evidence shows that some of the liquors drank by the plaintiff’s husband were ■bought by other persons, and it is. contended that this was not selling beer to Jack Carrier. There is no merit in this contention, as is shown by the familiar provisions of our statute and the repeated decisions of this court. Other errors assigned need not be considered, in view of the conclusions we have reached, as they will not occur upon a re-trial. For the error pointed' out in the first paragraph of this opinion, the judgment of the district court ÍS REVERSED.