5 The complaint may allege the time of the acts of connection with a continuando, and evidence may be offered for any time covered by the complaint.' Special damage need not be alleged. If the declaration avers the daughter to be the plaintiff's servant, it is good, although the averment of the daughter's infancy is omitted. A declaration alleging that the daughter was under twentyone, and unmarried, at the time of the seduction, and that the plaintiff then was and still is entitled to her attentions and services, is a sufficient averment of the relation of master and servant. Under a count setting up generally loss of her service, he may recover for his mental suffering caused by the wrong. But the parent must allege and prove that the debauching was the result of seduction. Where an action is brought in the name of the mother, and the declaration alleges that she is authorized to bring it, but makes no claim for the loss of services, it will be regarded as the statutory action for the injury to the daughter, and the mother cannot recover." An averment of previous chastity, or of good repute for chastity, is not essential to the complaint in an action by an unmarried woman for her own seduction.8 Nor need. the complaint particularly describe the means used to effect the seduction, nor need it aver that the woman relied on the seducer's promises. CHAPTER LVII. INJURIES FROM INTOXICATING LIQUORS. $1124. Injuries from intoxicating liquors Civil damage laws. §1125. Group one Statutes of Maine, Connecticut, and Indiana. - §1126. Group two-Statutes of Arkansas, Massachusetts, Missouri, New Hampshire, Nebraska, North Carolina, Pennsylvania, Rhode Island, Vermont, and West Virginia. $1127. Group three-Statutes of Illinois, Iowa, Kansas, Michigan, New York, Ohio, and Wisconsin. § 1128. Liability absolute — Lawfulness of sale immaterial. § 1129. Who liable- Master and servant Principal and agent. § 1124. Injuries from Intoxicating Liquors Civil Damage Laws. Within recent years in a number of the states, statutes have been passed giving to the husband, wife, parent, child, or guardian, and sometimes to other parties, for injuries done by intoxicated persons, the right to maintain actions against the person or persons who may have sold or given the liquors which caused the intoxication. Also for injuries to means of support; for the expense and trouble of caring for the intoxicated person; and for other injuries and losses which are particularly pointed out in the statutes.1 In King v. Henkie, 80 Ala. 505, 60 Am. Rep. 119, it was held that the personal representative of a de ceased person cannot, under the statute authorizing an action to be brought for a wrongful act or omis § 1125. and Indiana. Group One Statutes of Maine, Connecticut, The Maine law of 1858 contained a gencould maintain no action for loss or damage resulting from his death: Hallenback v. R. R. Co., 9 Cush. 480; Quinn v. Moore, 15 N. Y. 436. The reason for the rule was said by Baron Parke, in a case arising before him under the English statute, to be, that, in the eye of the common law, the value of life was so great as to be incapable of being estimated by money.' The rule probably, however, rests on a broader basis. These statutes, it will be observed, each give a right of action only in cases where the deceased himself, if the injury had not resulted in his death, might have sustained a recovery. They continue, in other words, for the benefit of specific distributees 'a right of action which, at common law, would have terminated at the death, and enlarge its scope to embrace the injury resulting from the death': Cooley on Torts, 264. The condition that the action must be one which could have been maintained by the deceased, had it failed to produce death, or had not death ensued, has no reference to the nature of the loss or injury sustained, or the person entitled to recover, but to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action: Saunders on Negligence, 219; South and North Ala. R. R. Co. v. Sullivan, 59 Ala. 272, 281. As said in Whitford v. R. R. Co., 23 N. Y. 465, where a similar phrase in the New York statute was construed, it is inserted solely for the purpose of defining the kind and degrees of delinquency with which the defendant must be chargeable in order to subject him to the action.' It necessarily follows, and has been accordingly decided with great uniformity by the courts, that where the negligence of the person killed has contributed proximately to the fatal injury, no action can be maintained by his personal representative under this statute, because the deceased himself would not have been entitled to recover had the injury not proved fatal: Cooley on Torts, 364; Saunders on Negli sion causing the death of another (Code Ala., sec. 2641), maintain an action against a retailer of intoxicating liquors who sells or gives them to a man of known intemperate habits who is helplessly drunk at the time, and the drinking of which causes his death almost instantaneously. The court thought that the proximate cause of the death was not the selling, but the drinking of the liquor, and that the contributory negligence of the deceased was, besides, a sufficient bar. The court say: "The selling or giving away of spirituous, vinous, or malt liquors, in any quantities whatever, to persons of known intemperate habits, except upon the requisition of a physican for medicinal purposes, is, in this state, made a misdemeanor, and a license to sell or retail affords no protection to the guilty party: Code 1876, sec. 4205. The foregoing section of our code (sec. 2641), like many similar statutes in other American states, was evidently modeled after what is commonly known in England as Lord Campbell's Act, 9 & 10 Vict., c. 93, enacted by the British Parliament in the year 1846. The language there used was that, 'Whensoever the death of a person shall be caused by (any) wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.' The purpose of this and like legislation was clearly to correct a defect of the common law, by which it was well settled that a right of action based on a tort or injury to the person died with the person injured. Under this maxim, Actio personalis moritur cum persona, the personal representative of a deceased person eral provision that any person not authorized under the act selling intoxicating liquors should be liable for all gence, 215; 1 Addison on Torts, Wood's ed., p. 621, sec. 575; Savannah etc. R. R. Co. v. Shearer, 58 Ala. 672. We first observe that the case made by the complaint does not seem to us to fall within the letter or spirit of the statute, and the court below so decided on the demurrer. The death of the deceased was not 'caused' so much by the wrongful act of the defendants in selling him whisky, as by his own act in drinking it after being sold to him. The only wrongful act imputed to the defendants was the selling or giving, as the case may be, of intoxicating liquors to the deceased while he was in a stupidly drunken condition, knowing that he was a man of intemperate habits. It is not shown that the defendants used any duress, deception, or arts of persuasion to induce the drinking of the liquor. The act, however, as we have said, was a statutory misdemeanor. But this was only the remote, not the proximate or intermediate, cause of the death of plaintiff's intestate. The rule is fully settled to be, that if an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote': Cooley on Torts, 68, 69; 1 Addison on Torts, 12, 13, secs. 10, 11. The statute under consideration was not intended to annul, but rather to preserve, this rule of the common law, so necessary to the certainty and justice of its administration, that there must be some proximate connection between the wrong done and the damage claimed to result from it, - that the two must be sufficiently conjoined so as to be 'concatenated as cause and effect,' as often said. Had it not been for the drinking of the liquor after the sale, which was a secondary or intervening cause cooperating to produce the fatal result, and was the act of deceased, not of defendants, the sale itself would have proved entirely harmless. Hence it cannot be said that the wrongful act of the defendants in making the sale caused the death of King, but rather his own act in drinking it. And this must be true, whatever the condition of his mind, or state of his intellect, and without regard to the question of any contributory negligence on his part. The case, we repeat, is one not covered by the statute. The plaintiff is, moreover, in our opinion, debarred from recovery by the contributory negligence of the deceased, even admitting that the wrongful act of the defendants caused the death of King. It is shown that the deceased was helplessly drunk when he purchased and drank the liquor, so much so as to render the exercise of ordinary care by him impracticable, if not impossible. The presumption is, that this condition was brought about by his own voluntary or negligent act, by the persuasion or coercion of another. If we admit that the state of mind thus produced was analogous to that of one non compos or insane, so that the deceased was in mental darkness, and so unconscious as to be at the moment incapable of knowledge or consent, thus rendering him morally unaccountable, yet the fact confronts us that this condition was the result of his own negligence or wantonness, and without it the accident of his death would not probably have occurred. The deceased, by the exercise of ordinary care, might have escaped making himself helplessly drunk. By not doing so he was the author of his own death, in view of the fact that it does not appear that the defendants, after the fatal draught was taken, could, by the exercise of ordinary care, or even by any practicable means at hand, have avoided the consequences of death, which almost instantly followed. This involved every element of contributory neg@gence, and was sufficient to prevent a recovery by the deceased had death not ensued: Railway Accident Law (Patterson), 74; Illinois Cent. R. R. injuries committed by the person to whom the liquor was sold, while intoxicated, to be recovered in an action on the case;1 and a statute of Connecticut contains a somewhat similar provision.2 A statute of Indiana, passed in 1853, but repealed two years later, gave a like remedy,3 limited, however, to a suit on the bond of the vendor,1 and to the case of a licensed retailer. In 1873 an act was passed, giving to the wife, child, parent, husband, guardian, employer, or other person a right of action, for injuries caused to them by the sale of intoxicating liquors, against the seller, and the landlord of the premises where the sale took place. This was, however, repealed in 1875 by an act which restricts the right of action to damages caused by sales in violation of law. Co. v. Cragen, 71 Ill. 177; Cramer v. Burlington, 42 Iowa, 315; Wharton on Negligence, sec. 332. We have thus hypothetically admitted the contention of appellant's counsel, that one drunk to unconsciousness is to be placed upon the same ground as infants of tender years, persons non compos or insane, so far as concerns the question of plaintiff's contributory negligence. The contrary of this, however, would seem to be true, as the basis of the rule governing the latter classes is that of moral accountability. Imbeciles, lunatics, and infants are not accountable morally for the states of their minds, and yet the law governing the subject of contributory negligence, even as applicable to them, is admitted to be in a very unsatisfactory and doubtful state: Cooley on Torts, 680-682. A drunkard, or one in a state of voluntary intoxication, can scarcely claim so much charity from the law in this particular as imbeciles and lunatics, because he has by his own agency, either wantonly or negligently, brought about his own misfortune. As drunkenness is no excuse for crimes, or for torts, no more should it be a basis for the liability of another in an action brought against him by the victim of such inebriety. The case of McCue v. Klein, 60 Tex. 168, 48 Am. Rep. 260, referred to by appellant's counsel as an authority to support the present action, although analogous to it in some respects, is broadly distinguishable from it in one important particular. There the death of the deceased was brought about by the defendants conspiring together to induce and persuade the deceased to swallow a large amount of whisky, he being already so drunk as to be deprived of his reason and to be rendered incapable of resistance, the draught being thus imposed upon him in his helpless condition. The case was made to rest on the ground that the administration of the deadly draught, like that of a noxious drug, was an assault, the deception by which it was accomplished being a fraud on the party's will, equivalent to force in overpowering it: Com. v. Stratton, 114 Mass. 303; 19 Am. Rep. 330.” 32. 10. 1 Me. Rev. Stats. 1871, p. 304, sec. 2 Rev. Stats. 1887, sec. 3101. 3 Act of March 4, 1853, p. 88, sec. Martin v. West, 7 Ind. 657. Struble v. Nodwift, 11 Ind. 65. Indiana act of March 17, 1875. (Acts Special Session, 1875, p. 55). |