Pennington v. Gillaspie

POFFENBARGER, PRESIDENT: Assigning as grounds of error the overruling of a demurrer to the declaration, a motion tp set aside the verdict, motions to exclude the evidence, objections to the introduction of evidence, the giving of certain instructions and refusal to give others, C. D. Gillaspie, a saloon keeper, complains of a judgment for $5,500.00, rendered against him and in favor of Diannah J. Pennington, by the circuit court of Tucker county, in an action brought under the civil damage statute, section 20 of chapter 32, Code of 1899, section 26 of chapter 32, as amended and re-enacted by the Acts of 1895, section 938, Code of 1906. The plaintiff is the widow of A. J. Pennington who, it is alleged, was killed on a logging railroad, while in a state of intoxication, induced by use of liquors sold to Mm by the defendant; and the second count of the declaration demands damages for injury to plaintiff’s means of support, occasioned by the death of her husband, in the following terms: “The said A. J. Pennington became and was greatly intoxicated, and while so intoxicated, the said A. J. Pennington wandered along and over the log railway leading from the saloon of the said defendant at Brooklyn» Heights to the home of the said Pennington about one half mile distant from the said saloon, and while he the said Pennington was on said route, and on the night of the day last mentioned, he the said Pennington, while so intoxicated, and in consequence of his said intoxication, was run over by a log engine' on said railway, and killed, whereby the said defendant, by causing such intoxication and consequent death, injured the plaintiff in her means of support, all in consequence of the unlawful acts of the said defendant in furnishing and selling to the said A. J. Pennington intoxicating liquors aforesaid, whereby the said — 544 — plaintiff’s husband became and was intoxicated as aforesaid.” This count contains no allegation of injury other than that resulting from the death of her husband by reason of the alleged unlawful sales made to him. Under it, evidence tending to prove death, resulting from unlawful sales, was admitted, and instructions given by the.court over the objection of the defendant, telling the jury, in substance, that they might include in their verdict damages for the loss of the support of her husband for such time as he would probably have lived; and the amount included for such damages admittedly constitutes by far the greater part of the damages assessed. The alleged right to such damages, therefore, constitutes the principal matter of controversy and the determination thereof, will govern the disposition of many of the numerous assignments of error. The rulings of the court, respecting injury to the plaintiff’s means of support by the death of her husband, were directly contrary to principles declared by this Court in Pegram v. Stortz, 31 W. Va. 220. Denying the soundness and binding-force of that decision, the trial court ignored it. In that case, similar in all material respects to this, and governed by the same statute, this Court held as follows in point 3 of the syllabus: “In such a case, no damage can be given because of injury to her means of support by the death of her husband caused by his intoxication, the consequence of liquors illegally furnished or sold to him by the defendant.” In the opinion, the Court said it was obvious, from the amount of the recovery, viewed in the light of the evidence, that the verdict must have either included damages to the plaintiff’s means of support by reason of the drowning of her husband, or what are called exemplary damages; and proceeded upon the inquiry as to whether either of these two matters constituted an element of damages recoverable under the statute, 'and returned a negative answer to both propositions. As to the latter, the decision has since been overruled in two cases, Mayer v. Frobe, 40 W. Va. 246, McMaster v. Dyer, 44 W. Va. 644; but as to the first, namely, that recovery cannot be had for injury to means of support by reason of the death of the party to whom illegal sales have been [made, it has not been overruled or in anjr way questioned by any subsequent decision. That the decision has been overruled as to one of — 545 — the points decided argues nothing against its soundness in respect to other propositions enunciated by it. On this question, the court reviewed the earlier cases decided by the New .York, Illinois, Iowa and Nebraska courts, holding the seller liable for injury ocasioned by the death of the purchaser, on the one hand, and the Massachusetts and Ohio cases, holding the contrary, on the other hand, and adopted the reasoning of the latter, as being better sustained by legal principles' than the others. ‘ At that time, the Court was composed of Judges Green, Johnson, SnydeR and Woods, all very able and learned men, and the opinion was written by Judge Gbeen, then at the zenith of his mental power and judicial career. The opinion is an able and carefully prepared one, and has since been acquiesced in by the legal profession and the people. The statute has been twice re-enacted by the legislature, since the rendition thereof, without any change as to the bases of liability, Acts 1904, chapter 3, Acts 1905, chapter 35, and the judicial construction given it by the decision in Pegram v. Stortz thereby presumptively, at least, adopted by the legislature. Brown v. Randolph County, 45 W. Va. 727; Simms v. Daniel, 49 W. Va. 554, (syl. 9); State v. Cornell, 54 Neb. 647. Barrett’s Appeal, 73 Conn. 288; Frink v. Pond, 46 N. H. 125; Fitzpatrick v. Chicago &c. Co., 139 Ill. 248; Sessions v. Roanoka, 145 U. S. 29; Mangus v. McClelland, 93 Va. 786; Swift & Co. v. Wood, 103 Va. 494. In some of these decisions, it has been declared that the re-enactment of a statute which has received a judicial construction is an adoption of that construction by the legislature, a manifestation of legislative intent that the statute shall thereafter have effect as so construed and not otherwise, and that the courts cannot thereafter give it a different construction. It suffices the purposes of this case to say it is well settled, as a rule of construction, that there is a pre--sumption of intent, on the part of the legislature, to adopt the judicial construction, and this rule extends not only to statutes construed by the courts of the states in which they were enacted, but also to statutes of one state adopted by the legislature of another after having been judicially construed by the courts of the states from which they were adopted. Some of the cases above cited say the adoption of the previous judicial construction is conclusive, and this seems to546 accord with the view that courts are bound by the legal rules of construction, but we find it unnecessary to enter upon the inquiry suggested. We perceive no reason why we should not observe a well settled rule of construction, although it may not be absolutely obligatory upon- us in all cases and under all circumstances. Though it is insisted that the statute has been materially changed since the decision in question was rendered, we do not think it .has. Section 16 of chapter 107, Acts 1877, under which Pegram v. Stortz arose, required the service of a notice, (since dispensed with,) and then provided as follows: “And thereafter, if the person so served with such notice shall, by himself or another, sell or furnish such liquors to the person named in said notice, and by reason thereof the person to whom such liquor is sold or furnished shall become intoxicated, and, while in that condition, do damage to another, or shall, by reason of such intoxication, injure any person in his or her means of support who may have the legal right to look to him therefor, upon due proof that such liquors were sold or furnished as aforesaid, and that the person mentioned in said notice was, at the time of the service thereof, in the habit of drinking to intoxication, an action may be maintained by the husband, wife, child, parent or guardian of the person mentioned in said notice, or other person injured by him as aforesaid, against the person selling or furnishing him such liquors, as well as for all such damages as the plaintiff has sustained by reason of the selling or giving of such liquors.” The same statute as amended and re-enacted by section 20 of chapter 29 of the Acts of 1887, and the Acts of 1904 and 1905, provides as follows: • “Every husband, wife, child, parent, guardian, employer or other person, 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, shall have a right of action in his or her name severally or jointly, against any person who shall, by unlawfully selling or giving intoxicating liquors, have caused intoxication, in whole or in part, of such person or persons.” Thus amended, the statute is simplified, stripped of verbiage, and dispenses with notice as a prerequisite to a cause of action, but, in other respects, remains the same in meaning — 547 — and legal effect. The phrase “in consequence of the intoxication or otherwise” has been added, but this works no change in the object or purpose of the act or basis of liability. This is made plain and distinct by the opinion of Judge Geeen. He says emphatically the meaning of the old statute without it was the same as it would have been, had it contained it, as will appear from the following quotation therefrom: “In reaching this conclusion, I have regarded our statute as substantially the same as the statute of Hew York and the other States whose statutes is similar thereto, though the counsel for the appellant insists that it is materially different, and that under our statute the husband must actively do some act from which injury results to the means of support of his wife before she has any right of action; the language of our statute being, ‘while intoxicated, do damage to another, or shall, by reason of such intoxication, injure any person in his or her means of support;’ which it is insisted should be interpreted, do some act whereby he inflicts an injury on his wife or others in their means of support. I am strongly inclined to think that there is no substantial difference, in this respect, between the language and meaning of the New York and other similar statutes and that of our State. The supposed difference is that the New York statute and that of the other States say, ‘if certain persons named are injured in their means of support in consequence of the intoxication,’ &c., and our statute says, -or ‘shall by reason of such intoxication (that is, in consequence of the intoxication,) injure any person in his or her means of support.’ Now, to my mind, the language, ‘shall be injured in. consequence of the intoxication, ’ should be interpreted to mean the same as, ‘if he shall, in consequence of the intoxication, injure him or her in her means of support.’ All that is required by the language in our statute, as in the statute of other States, is that certain persons shall be injured, in consequence of the intoxication, in their means of support. An ingenious argument is made by the appellant’s counsel to show that, by our act, something must be actively done by the intoxicated husband to injure the wife in her means of support, while, under the wording of the other statutes, nothing need be done by the intoxicated husband to injure the wife in her means of support; but it will suffice if her means of support are injured in consequence — 548 — of his intoxication, though he has actively done nothing to injure her in her means of support. Such a distinction will not bear investigation; for surely, under our statute, if the injury to the wife’s means of support is produced simply by incapacitating the husband to do anything in the way of making a living because of the husband’s intoxication, this is, in the meaning of our law, ‘injuring her in the means of her support,’ though it is effected simply by his doing nothing, being incapacitated from doing any labor by his intoxication. In other words, the language of our statute, ‘he may injure her in her means of support’ as effectually by doing nothing, because of his intoxication, as by actively doing something to injure her in her means of support. There is, therefore, I think, no such difference in the meaning of the statutes of these other States in their meaning and that of our statute as the appellants’s counsel has insisted upon in his argument.” The demurrer was general, denying the sufficiency in law of the entire declaration, not special, challenging the sufficiency of each count. Therefore, the insufficiency of the second count does not vitiate it as a whole. The first count contains some allegations that are said to be improper, but if it alleges sufficient matter of fact to warrant a recovery, all immaterial allegations may be disregarded as surplusage, and all injury therefrom at the hands of the jury was preventable by objection to evidence offered to prove them and by application for proper instructions, forbidding allowance of damages based thereon. Pegram v. Stortz, 31 W. Va. 220; Thomas v. Electrical Co., 54 W. Va. 395; Patton v. Elk River Co., 13 W. Va. 427. Inconsistency between the two counts in some slight particulars is complained of, but this amounts to nothing more than variation of statement of details, not in any sense, repugnant to the rules of pleading. A charge of insufficiency is based on the use of the word “furnishing” instead of the statutory word “giving,” the statute making the licensee liable for either selling or giving intoxicating liquors in certain cases. The allegation is that the defendant sold to the deceased, and then that the defendant was “so furnishing” liquors to him, and later “sold and furnished” him liquors. The averment of unlawful selling is amply sufficient, and there is nothing in this objec — 549 — tion. Our conclusion is the same as to the failure to aver that sales were made by defendant’s clerks or bar-tenders. What evidence is admissible under the declaration is • an entirely different matter. After having alleged unlawful sales, the first count of the declaration avers that “in consequence of such sales and so furnishing intoxicating liquors to the said A. J. Pennington, the' said A. J. Pennington became and was greatly intoxicated, and while so intoxicated, the said A. J. Pennington neglected his work and squandered his money, and thereby injured the plaintiff in her means of support, and also while so intoxicated injured the plaintiff in her person, in this: that he abused, cursed, ill-treated and threatened the life of the said plaintiff and caused her great humiliation and grief;” and avers no injury in any other way or to any other extent. Pegram v. Stortz holds: “It is sufficient, in a declaration in such a case, to allege generally, that the plaintiff was injured in her means of support in consequance of such intoxication; but under such a declaration the plaintiff could prove only the extent of the injury to her means of support which she had sustained as the necessary consequence of her husband’s intoxication, as that resulting from his inability to labor while so intoxicated.” The allegations above quoted, though not exactly accordant in terms with this rule, state a cause of action under it, for they say the plaintiff was injured in her means of support by reason of the unlawful sales complained of. Under the principles introduced by these cases, we think it Avas competent also to prove, and, therefore proper to allege, conduct of the husband inflicting humiliation and grief upon the Avife. It is matter of aggravation groAving directly out of the Avanton act of the defendant. Radly v. Seider, 99 Mich. 431; Lucker v. Liske, 111 Mich. 683. No omission of any material fact has been brought to our attention and Ave perceive none. We conclude, therefore, that the demurrer was properly overruled. The action Avas commenced July 23, 1906, and the declaration legally claims damages for injuries for the preceding one year. Over the objection of the defendant, evidence tending to prove habitual drunkennéss on the part of the deceased XArior to the year for Avhich damages are claimed, and continuation thereof up until the sales complained of Averemade, — 550 — and knowledge thereof on the part of the defendant, was admitted. This evidence was admissible for the purpose of proving that the defendant knew the deceased was an habitual drunkard at the time he made sales to him within the' year for which recovery of damages is sought. It is immaterial when the habit was acquired, provided it existed when the sales were made and the seller had knowledge of it. Plaintiff’s instruction No. 1 is complained of because it fails to limit the damages recoverable to those arising from sales made within one year prior to the commencement of the action. Such limitation should have been put on. An attempt to do so in another instruction is likely the reason the court“gave this one without it. But the other instruction, No. 11, was bad for another reason which will be stated, and should not itself have been given. Therefore, we conclude that said instruction No. 1 was improperly given. Plaintiff’s instructions Nos. 2, 3, 6, 7, 8, 9, 10 and 11 should all have been refused, because they predicate a right to recover damages upon the loss of life of the plaintiff’s husband, occasioned by the alleged illegal sales. Under the construction given the statute ,by the decision in Pegram v. Stortz, such damages are not recoverable. Exceptions to plaintiff’s instructions Nos. 4 and 5 are based upon the allowance by them of damages arising from sales made by the bar-tender of the defendant at his place of businesss because the declaration does not aver sales made by anybody other than the defendant himself. This objection is groundless. Sales made by the defendant’s clerk, agent or servant are deemed in law to have been made by him, and he is presumed to have had knowledge thereof. It would be extremely and unnecessarily burdensome to require persons, having occasion to sue under this statute, to specify and prove the particular agent or servant by whom each sale was made. It would be almost impossible to do so in many instances. Besides, no rule of practice requires it in other cases. “An indictment or complaint alleging an unlawful sale of liquor by defendant is supported by proof that he sold it by his clerk, . servant or agent.” 23 Cyc. 257, citing a number of authorities. The rules governing civil and criminal actions are, generally speaking, the same, and it is uniform practice in this state to prove sales by bar-tenders under indictments against licens — 551 — ees. No further objection to these two instructions is specified and we perceive no error in the giving thereof. Instruction No. 11, limiting the time for which damages could be allowed, would have been proper had it not authorized recovery for injury to means of future support by reason of sales made after the date therein specified. This plainly imports the right to recover damages resulting from the death of the plaintiff’s husband. Defendant’s instruction No. 1 was properly refused because it inhibited the assessment of exemplary damages. His instructions Nos. 2, 8, 9 and 14, forbidding recovery of damages, occasioned by the death of of plaintiff’s husband, were improperly refused. His instructions Nos. 6, 7 and 13 related to an immaterial matter; the proximate cause of the death of plaintiff’s husband, and were therefore properly refused. His instructions Nos. 3 and 4 were properly refused.for the reason that they limit the recovery for injury to plaintiff’s means of support, thereby precluding recovery of exemplary damages. His instruction No. 16, denying right of recovery for injury resulting from sales not made by the defendant should obviously have been given. That it named the defendant personally is no ground of objection. The plaintiff could have had an instruction, defining C. D. Gillaspie as embracing, for the purposes of the sales and this action, his servants and agents. State v. Trail, 59 W. Va. 175, applies this principle. His instruction No. 17 was properly refused. It denied right of recovery for sales made by the agents or clerks of the defendant. His instruction No. 18, telling the jury that they could not find for the plaintiff, unless they believed, from the evidence, that the sales complained of were made in Tucker county, was properly refused. If the declaration in a civil action shows jurisdiction on its face, no exception for want of jurisdiction can be considered, unless it be taken by plea in abatement. Code, chapter 125, section 116; Snyder v. Philadelphia Co., 54 W. Va. 149. By his failure to raise this question in the manner prescribed by the Code, the defendant waived it. Osborn v. Taylor, 13 Grat. 120; Telegraph Co. v. Hobson Co., 15 Grat. 122; Quarrier v. Quarrier, 10 W. Va. 507; Middleton v. White, 5 W. Va. 572; Bank v. Gettinger, 3 W. Va. 309. Besides, the cause of action is no doubt transitory, and the place at which the sales — 552 — were made, therefore, immaterial. Humphreys N. N. & M. V. Ry. Co., 33 W. Va. 1335. His instruction No. 5 telling the jury substantially that, if the deceased had long been in the habit of drinking to intoxication and before the defendant knew him or had a saloon at the place at which the sales in question were made, they should find for the defendant, was obviously improper. It was right in the teeth of the- statute. It was án attempt to justify and defend by reliance upon the very thing which the statute says shall make a man liable, namely, knowingly selling to an habitual drunkard. His instruction No. 11, requiring the jury to find for the defendant if they believed from the evidence that the deceased had not, on the day of his death, drank to excess or intoxication, and had not theretofore been in the habit of drinking to intoxication, was properly refused. Though not drunk that day nor an habitual drunkard, there was evidence tending to prove sales to the deceased at other times within the year while he was intoxicated. His instruction No. 11 was properly ref used, for it required the jury to find for him, notwithstanding they could have found from the evidence that sales were made to the deceased while he was intoxicated. That would have been an unlawful sale, although he was not an habitual drunkard. There was evidence tending to show that the deceased was intoxicated on the day of his death, and that sales had been made to him while he was in that condition. There is much general complaint in the briefs, founded on the admission of evidence that is said not to have been admissible, in addition to that which has been herein considered. But it is not specified-by incorporation in separate bills of exception, or particular reference thereto in the briefs. Under the rules governing procedure in this Court, we are not required to ferret out items of inadmissible evidence not specified. Enough has been said, however, to clearly- indicate to counsel and the court below what is admissible and what inadmissible, and, if care is exercised on the new trial, the danger of erroneous action in this respect will be very slight. The sufficiency of the evidence to sustain the verdict is challenged, but, as the judgment has to be reversed and a new trial allowed, for the errors herein stated, this ground of exception will not be considered. — 553 — For the errors herein pointed out, the judgment will be reversed, the verdict set aside, a new trial awarded, and the case remanded. Reversed. JVew Trial Awarded.