Durein v. Pontious

[359] The opinion of the court was delivered by Horton, C. J.: This was an action for damages for injury to the means of support of plaintiffs below — defendants in error— arising from the sale and gift of intoxicating liquors to their father, Elias Pontious, alleged to have been sold and given to him by defendants below — plaintiffs in error — between May 1, 1881, and December 5, 1883. At the trial a verdict was returned in favor of plaintiffs below for $1,500 as actual damages, and $600 as exemplary damages. Judgment was rendered thereon. To reverse this judgment, defendants bring the case to this court. The action was brought under § 15, ch. 128, Laws of 1881, known as the prohibitory liquor law, which reads as follows: “Every wife, child, parent, guardian, or employer, or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent or guardian shall have a right of action, in his or her own name, against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parents, guardian, or next friend, as the court shall direct; and all suits for damages under this act shall' be by civil action in any of the courts of this state having jurisdiction thereof.” [360] 1'uqu1OT^|wf [359] It is first contended that said §15 is unconstitutional, for the reason that the title of the act is not broad enough to cover it. The title of the act is, “An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.” This court has passed upon this question in the case of Werner v. Edmiston, 24 Kas. 147. That action was under § 10 of the act of 1868, entitled “An act to restrain dramshops and [360] taverns, and to regulate the sale of intoxicating liquors.” Sec. 15 of the statute of 1881 was bodily transferred from the dramshop act of 1868. The prohibitory liquor law of 1881 not only provides for prohibition, but also for the regulation of the sale of intoxicating liquors. The title of the act of 1881 is as broad as the title of the act of 1868, so far as embracing therein the provisions of said § 15; and the case of Werner v. Edmiston, supra, is therefore controlling. It is next contended that there was a misjoinder of parties, and that several causes of action were improperly joined. This upon the ground that said § 15 gives a right of action to every wife, to every child, to every parent, to every guardian, to every employer, and to every other person who is injured in person or property, or means of support, by any intoxicated person or in consequence of intoxication; that as each parent, each child, and each guardian has a right of action independent of the other under the statute, the plaintiffs below had no right to join their separate causes of action into one action and to maintain that action jointly against the defendants. In Palmer v. Waddell, 22 Kas. 352, this court decided that— “Where two or more persons have separate causes of action against the same defendant, arising from the obstruction of a natural water-course, and the injury of their lands and crops thereby, they cannot unite in the same petition to recover damages for such injuries, which are plainly distinct and unconnected.” (Code, §§35, 37, 38.) In Tate v. Railroad Co., 10 Ind. 174, it was said that— “Two or more persons having separate causes of action against the same defendant, though arising out of the same transaction, cannot unite; nor can several plaintiffs in one complaint demand several distinct matters of relief; nor can they enforce joint and separate demands against the same defendants.” Iowa has a statute making the seller of intoxicating liquors responsible for the injurious results of his sales, substantially the same as our own in its provisions and effect. In Huggins v. Kavanagh, 52 Iowa, 369, which was an [361] action by the wife against a defendant for injuring her and her family by selling intoxicating liquors to her husband, the supreme court, referring to the statute of that state, used the following language: “The statute gives a right of action to every child injured in its means of support, as well as to the wife. As each has a right of action, neither can recover for the damages sustained by the other; nor can the plaintiff’s damages be increased because she has a large number of children, or diminished because she has none, for her right of action is' based on the loss of means of her support, and not for the support of her children.” In Sibila v. Bahney, 34 Ohio St. 410, in an action under the civil-damage act of that state, similar to ours, the supreme court, in speaking of the rights of the wife, say: “Her loss consisted principally in the injury to her means of future support. At the death of her husband she was left in comfortable circumstances. Each child, five in number, has, or had, a likely remedy for injury to its means of future support, resulting from the same acts of the defendant.” The Maine law of 1872 contains the following section: “Every wife, child, parent, guardian, husband or other person who is injured in person, property, means of support or otherwise by any intoxicated person, or by reason of the intoxication of any person, has'a right of action in his own name against anyone who, by selling or giving any intoxicating liquors, or otherwise, has caused or contributed to the intoxication of such person; and in such action the plaintiff may recover both actual and exemplary damages. The owner, lessee or person renting or leasing any building or premises, having knowledge that intoxicating liquors are sold therein, are liable severally or jointly with the person selling or giving intoxicating liquors as aforesaid. And in actions by a wife, husband, parent, or child, general reputation of such relationship is prima fade evidence thereof; and the amount recovered by a wife or child shall be her or his sole and separate property.” (Sec. 4, ch. 63 — Rev. Stat. of Me. 1883, ch. 27, §49,p.311.) In that state Patrick McGee and wife, being the parents of James McGee, brought their action against John McCann for selling two glasses of whisky to their son, by reason whereof [362] he became intoxicated, and, in trying to return home, fell upon the railroad track, where a passing train ran over him and cut off his left arm, rendering him unfit for manual labor, and thereby depriving his parents of their only means of support. Objection having been taken to the petition upon the ground that there was a misjoinder of plaintiffs, the court disposes of the matter as follows: “The objection, we think, must prevail. The act of 1872, ch. 63, § 4, gives to every parent ‘who shall be injured in person, property, means of support, or otherwise, by any intoxicated person, or by reason of the intoxication of any person, a right of action in his or her own name against any person or persons who shall . . . have caused or contributed to the intoxication of such person.’ There is nothing in the statute which in any degree tends to change the ordinary principles of law as applicable to the maintenance of an action of this kind; hence, a joint action in the name of two can be maintained only when their joint interest is invaded, or where they are jointly interested in the damages to be recovered. This seems to be a universal rule, and the apparent exceptions are not real ones. ... In the case at bar, the interest as well as the injury, is several. The damage complained of is not to property, but to support. The support of the one cannot be that of the other. The injury to the one, in this respect, cannot be a direct inj ury to that of the other, though in the case of husband and wife it may be an indirect injury, but one for which an action would not lie. Here, the plaintiffs do not declare as husband and wife, but as parents. As such, the injury to the one and the amount to be recovered might be very different from that of the other, for both the real and the exemplary damage might be very different. The language of the statute, so far from changing this principle of law, tends very decidedly to confirm it. ‘Every parent’ thus injured shall have a right of action ‘in his or her own name,’ and the amount recovered by the ‘wife or child shall be his or her sole and separate property.’ If the parents may join, just as well might the children, for, in the same sense, they all have community of interest.” (McGee v. McCann, 69 Me. [1879] 84, 85.) Our statute says: “ Every wife, child, parent, guardian, or employer, or other person, who shall be injured in person, property, or means of [363] support, by any intoxicated person, or in consequence of tbe intoxication, . . . shall have a right of action in his or her own name . . . for all damages actually sustained, as well as for exemplary damages,” etc. 2 civil aam mfsdSnáer of piamtaffi. Therefore the foregoing decision from Maine is very much to the point, and declares what, in our opinion, is the law applicable to the case before us as to the joinder of plaintiffs. The alleged wrongs of the defendaü£g gaye eaGk 0f t;he plaintiffs a right to an action for the damages he had sustained, but did not give them any right to maintain a joint action. The case is one in which separate actions should have been brought against the defendants; that is, one in which separate actions should have been brought by each of the plaintiffs. Our conclusion therefore is, that there is a misjoinder appearing in the petition. (See Swenson v. Plow Co., 14 Kas. 387; Hudson v. Comm’rs of Atchison Co., 12 id. 140; McGrath v. City of Newton, 29 id. 364; Bort v. Yaw, 46 Iowa, 323; Hinkle v. Davendorf, 38 id. 355; Bartges v. O’Neil, 13 Ohio St. 72.) Counsel refer to Roose v. Perkins, 9 Neb. 304, and Kerkow v. Bauer, 15 id. 150, as holding that minor children may join in a case of this kind. An examination of these decisions and the statute of Nebraska shows that the cases cited are not applicable to actions brought under the statute of this state. Roose v. Perkins, supra, was decided in 1879; Kerkow v. Bauer, supra, in 1883. The statute in force in 1879 and 1883 in Nebraska, reads: “The person so licensed shall pay all damages that the community or individuals may sustain in consequence of such traffic; he shall support all paupers, widows, and orphans, and the expenses of all civil and criminal prosecutions growing out of or justly attributable to his retail traffic in intoxicating drinks,” etc. (Laws of 1873, §576, p. 853.) The statute of that state further provides: “It shall be lawful for any married woman, or other person at her request, to institute and maintain in her own name a suit on any such bond for all damages sustained by herself [364] and children on account of such traffic; and the money when collected shall be paid over for the use of herself and children.” (Laws of 1873, §577,p.853.) Whenever the legislature of this state enacts a statute that the persons constituting one family may join in an action for the loss of means of support against those who have furnished the intoxicating liquor to the husband and father, the persons constituting one family may unite in bringing their action for loss of support; but under the existing statute this cannot be done. We cannot say that the union of the plaintiffs in the prosecution of their actions may not have prejudiced the rights of the defendants. s. Limitation of action. This disposes of the case; and as the action cannot again be tried upon the pleadings as they now stand, owing to the misjoinder of the plaintiffs, we do not deem it advisable to pass upon the other questions presented, with the single exception that it seems necessary for us to say that the question of limitation of this class of cases was not intended to be decided in Jockers v. Borgman, 29 Kas. 109. This action, being upon a liability created by statute, other than a forfeiture or penalty, is controlled as to limitation by the provisions of subdivision 2 of §18 of the code. The judgment of the district court will be reversed, and the cause remanded. All the Justices concurring.