« 이전계속 »
states, and, logically, as it appears to the writer, to produce within the meaning of the statute a total loss of the means of support which would otherwise- that is, in the absence of the wrongful cause-be derivable from him.'
In Mead v. Stratton2 the court say: "It is evident that the legislature intended to go in such a case far beyond anything known to the common law, and to provide a remedy for injuries occasioned by one who was instrumental in producing, or who caused, the intoxication. While a statute of this character should not be enlarged, it should be interpreted, where the language is clear and explicit, according to its true intent and meaning, having in view the evil to be remedied and the object to be attained."
In Schroder v. Crawford the supreme court of Illinois advance the same view by saying: "It was not the intention that the intoxicating liquor alone, of itself, exclusive of other agency, should do the whole injury. That would fall quite short of the measure of remedy intended to be given. The statute was designed for a practical end, to give a substantial remedy, and should be allowed to have effect according to its natural and obvious meaning. Any fair reading of the enactment must be that in the instances above, as well as the present, the death would have been in consequence of the intoxication within the undoubted intendment of the statute." In accordance with this construction, wherever death or permanent disability occurs as the natural and proximate result of intoxication, as where the intoxicated person lies down and is frozen to death, or drowned by a freshet, or is run over by a railroad train, or is permanently injured or killed by other mis
1 Mead v. Stratton, 87 N. Y. 493; Schroder v. Crawford, 94 Ill. 357; Hackett v. Smelsley, 77 id. 109; Roose v. Perkins, 9 Neb. 304; Buckmaster v. McElroy, 20 id. 557; Rafferty v. Buckman, 46 Iowa, 195.
287 N. Y. 496.
3 94 Ill. 361.
McCarty v. Wells, 51 Hun, 171; Roose v. Perkins, 9 Neb. 304; S. C. 31 Am. Rep. 409.
6 Rosecrants v. Shoemaker, 60 Mich. 4; S. C. 26 N. W. Rep. 794; Emory v. Addis, 71 Ill. 273. In Indiana the death under such circumstances is held too remote an effect to be charged
4 Emory v. Addis, 71 Ill. 273; Hack- to the person who unlawfully sold the
ett v. Smelsley, 77 id. 109.
5 Hackett v. Smelsley, 77 Ill. 109; Buckmaster v. McElroy, 20 Neb. 557;
liquor which caused the intoxication. Collier v. Early, 54 Ind. 559. The court say: "The death of Early,
chance or his own act, owing to his helplessness, frenzy or abnormal condition, in a state of intoxication,' this consequence is deemed within the statute when the complaint is for an injury to means of support. So where the intoxicated person shot and killed another and was convicted of criminal homicide and imprisoned for life. But if he provokes a quarrel and is killed therein, his death is but the remote consequence of the intoxication, and there can be no recovery therefor against the vendor of the liquor.3
§ 376. A more conservative view has prevailed in some of the states. In Davis v. Justice the supreme court of Ohio say: "Injuries by any intoxicated person or in consequence of the intoxication, are the terms of the statute; and it is contended that if intoxication causes death, and death causes injury, the latter is within the meaning of the act. On the other hand, it is contended that as the legislature must be presumed to have known the state of the common law, and the extent of the innovation by the act of 1851 [an act requiring compensation for causing death by wrongful act, neglect or default], if a further innovation had been intended, such intention would have been expressed in unmistakable terms. We incline to the latter view. Indeed, when the injury to be compensated consists in the loss of labor, it is at least paradoxical to say that labor which could not be performed during the life of the laborer is included. And again, in construing the words of the statute applicable to the case before us, it might be said that the action can be maintained only for an injury to means of support of the plaintiff as wife of the person intoxicated, and not for an injury sustained by her as his widow. She had an interest in his labor and in his capacity to labor, as a means of support, during his life; but after his death this means of support no longer existed, and was not the subject of injury or diminution.
caused by a train of cars, is an effect which is not naturally, necessarily, nor even probably, connected with the fact of unlawfully selling intoxicating liquors to him by the appellant whereby he became drunk." Krach v. Heilman, 53 Ind. 517.
1 Volans v. Owen, 74 N. Y. 526;
Blatz v. Rohrbach, 42 Hun, 402; Davis v. Standish, 26 Hun, 608; Campbell v. Schlesinger, 48 id. 428.
2 Beers v. Walhizer, 43 Hun, 254. 3 Shugart v. Egan, 83 Ill. 56. See Lueken v. People, 3 Ill. App. 375; Swinfin v. Lowry, 37 Minn. 345. 4 31 Ohio St. 359.
"But to avoid any charge of hypercriticism, we place our decision upon the ground that in view of the previous state of the law, and the mischief sought to be remedied, we can find no expression in the statute that indicates an intention on the part of the legislature to bring the loss of labor caused by the death of the person intoxicated within the meaning of the term ' means of support,' for an injury to which the right of action is given by the statute." The same view prevails in Massachusetts.2 In Indiana the loss of "means of support," where death has occurred to a person in a drunken, insensible state in consequence of a train of cars striking him,3 or being crushed or fatally injured by a barrel of salt in the wagon in which he was laid to be carried by a drunken associate, has been denied, not on the ground of legislative intention excluding the right to recover in case of death, but on the common-law principle that the loss of support is too remote a consequence of the wrongful cause mentioned in the statute. Worden, C. J., said: "We have seen that, if the plaintiff is entitled to recover, it is because she was injured 'in consequence of the intoxication' of the deceased. The immediate cause of the injury to the plaintiff was the death of the deceased. The remote cause may have been his intoxication, which led to his injuries, which injuries, in their turn, led to his death. The plaintiff, therefore, was not immediately injured by the intoxication of the deceased." In Collier v. Early, Biddle, J., said: "The death had not taken place immediately and directly upon the cause; but it must be effected by a chain of natural effects and causes, unchanged by human action, or the party who committed the first act will not be responsible." The authority of these utterances has been very much shaken by a later case. In Michigan, though the statute provides absolutely for an action in favor of any person injured in person, property, means of support or otherwise, it is still an open question, and expressly recognized as such, whether an action will lie against one who lawfully sells to an adult person. All the cases in that state
1 Kirchner v. Myers, 35 Ohio St. 85; S. C. 35 Am. Rep. 598.
2 Barrett v. Dolan, 130 Mass. 366;
S. C. 39 Am. Rep. 456.
Collier v. Early, 54 Ind. 559.
4 Krach v. Heilman, 53 Ind. 517.
7 Backes v. Dant, 55 Ind. 181.
8 Dunlap v. Wagner, 85 Ind. 529.
have been judicially referred to as cases where the sale was unlawful because in violation of the statute.1
§ 377. In separate actions against one of the many persons whose sales to a drunkard have contributed to a particular intoxication or to a besotted condition, the measure of the defendant's individual responsibility has sometimes been a subject of consideration. The question has been whether one of a number who has so contributed, by separate and distinct sales, made without concert or agreement with the others, can be held liable for all the damage which has resulted, or for that part only which his own acts have caused. The common-law principle is that one is not liable for the whole damage done by several unless the wrong was done with such concert that all are jointly liable, and they are not jointly liable unless they did the wrongful act jointly, or unless it was done by their preconcert or was subsequently jointly ratified and adopted. This rule seems to have been relaxed and departed from in Boyd v. Watt, to facilitate the remedy. The supreme court of Ohio say in that case: "If, as seems to be claimed, a defendant can only be liable, except in cases of conspiracy or agreement, when he is the sole cause of the habitual intoxication, and no recovery can be had unless the damages can be separated (an impossibility in most cases of this class), then this part of the statute is virtually a dead-letter. Why should the defendant be exoner ated from the injury he has caused by his habitual wrongs for a series of years by showing that others, without his knowledge, have also contributed by like means to this result? He was using adequate means to produce the result, and may therefore fairly be presumed to have intended it. True, he may not have enjoyed a monopoly in the profits accruing, by reason of the competition of others in a common business; but that certainly is no reason why he should not be liable for the injuries he was intentionally engaged in causing. If such is the law,
1 Bell v. Zelmer, 75 Mich. 66. See Jewett v. Wanshura, 43 Iowa, 574; Myers v. Conway, 55 Iowa, 166; Wing v. Benham, 76 id. 17; Myers v. Kirt, 68 Iowa, 124; S. C. 64 id. 27.
21 Suth. on Dam. 211-216, and cases cited; Lull v. Fox, etc. Im
provement Co. 19 Wis. 100; La France
then he could take advantage of his own wrong by showing that during these four years another or others had contributed." In such a case it is held in Iowa that the wrong is not joint; that several contributing separately cannot be sued together, nor when sued separately the whole damage recovered. Each is liable only for his own act; a recovery against or a release of another is no defense.1
In La France v. Krayer the court say: "A joint liability arises when an immediate act is done by the co-operation or joint act of two or more persons. Mere successive wrongs, being the independent acts of the persons doing them, will not create a joint liability, although the wrongs may be committed against the same person. There must be concurrent action, co-operation or a consent or approval in the accomplishment by the wrong-doers of the particular wrong, in order to make them jointly liable." But the court was careful to say: “But we are not to be understood as denying a joint liability in cases where the successive sales by several have produced a particular intoxication from which the injury sued for has resulted." Accordingly, in a case which came before it the following year, the same court used this language: "If a dozen saloonkeepers should each sell a drink of whisky to a party, from the combined effect of which he should become intoxicated, and should beat another or destroy his property, the law has no means of determining the exact amount of the injury which is chargeable to each. Under such circumstances we have no doubt they are joint wrong-doers, and that each is liable for the injury done by all. They could all be sued together, or one, or any number of them, separately. But there could be but one satisfaction for the injury." But where the statute pro
1 La France v. Krayer, 42 Iowa, 143; Flint v. Gauer, 66 id. 696; Richmond v. Shickler, 57 id. 486; Ennis v. Shiley, 47 id. 552; Hitchner v. Ehlers, 44 id. 40; Ward v. Thompson, 48 id. 588; Engleken v. Webber, 47 id. 558; Jewett v. Wanshura, 43 id. 574; Woolheather v. Risley, 38 id. 486; Jackson v. Noble, 54 id. 641; Kearney v. Fitzgerald, 43 id. 580; Huggins v. Kavanagh, 52 id. 368.
2 42 Iowa, 143, 145.
Kearney v. Fitzgerald, 43 Iowa, 580, 583.
4 Under the Nebraska statute it has been held in that state that an action can be maintained by the widow and infant children, jointly or severally, whose husband and father has lost his life in consequence of intoxication, against any and all persons, jointly or severally, who sold, gave