Quinlan v. Welch

• Decision Date: 30 January 1894
• Citation: 36 N.E. 12,141 N.Y. 158
• Parties: QUINLAN v. WELCH.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 158

36 N.E. 12

QUINLAN

v.WELCH.

Court of Appeals of New York.

Jan. 30, 1894.

Appeal from supreme court, general term, fifth department.

Action by Nellie Quinlan, by Nellie Quinlan, guardian ad litem, against James H. Welch. From a judgment of the general term (23 N. Y. Supp. 963) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for new trial, defendant appeals. Affirmed.

J. Arthur Corbin, for appellant.

Frederick W. & E. F. Kruse, for respondent.

BARTLETT, J.

The plaintiff, the infant child of Dennis Quinlan, deceased, brings this action under chapter 646 of the Laws of 1873, known as the ‘Civil Damage Act,’ to recover damages for her father's death, caused, as alleged, by the sale of intoxicating liquors to him by one O'Leary, the tenant or occupant of premises owned by the defendant, James H. Welch. At the opening of the trial it was conceded that the store and premises in Olean, at which it is alleged that the intoxicating liquor was sold June 17, 1891, were then owned by the defendant, and that he rented them to O'Leary some time prior to that date, and knew that O'Leary was selling intoxicating liquors there on the 17th day of June, 1891. The action was tried at the Cattaraugus circuit in September, 1892, and resulted in a verdict for plaintiff.

Dennis Quinlan, the deceased, lived at Portville. He was an industrious man, employed by the Portville Tanning Company as a skilled workman, and the sole support of his wife and family by day's labor; he having no property. He arrived in the village of Olean on the afternoon of the 17th day of June, 1891, and with several companions visited the saloons of the town, the defendant's premises among others, and drank heavily. The evening of that day he boarded a train to return home, and was at the time much intoxicated. He left the train at Weston early in the evening, and the next morning about 8 o'clock his mutilated body was found on the railroad track midway between Weston and Portville. It does not appear when the deceased met his death. He evidently attempted, during the night, to walk on the track from Weston to Portville. The defendant moved for a nonsuit practically on two grounds,-failure of proof, and the absence of the notice required by chapter 403 of the Laws of 1892. As to alleged failure of proof, we are of opinion that there was sufficient evidence to submit to the jury as to all the essential facts necessary essary to sustain this action under the civil damage act of 1873, and the verdict is conclusive. The defendant's contention that chapter 403 of the Laws of 1892 is applicable to this case presents the principal point on this appeal. The second section of that act, which was passed April 30, 1892, reads as follows, viz.: ‘Sec. 2. A recovery may be had in a civil action, of the damages suffered by reason of the intoxication of any person, from any person or persons who shall be selling or giving away intoxicating drink, have caused such intoxication, or from any persons owning or renting or permitting the occupation of any building or premises wherein such selling or giving away shall have occurred, jointly with the person or persons selling or giving away, or severally, if the person or persons suffering such damage shall, previous to such selling or giving away, have given written notice to the licensee or his agents or the person or persons so selling or giving away forbidding such selling or giving away to the person whose intoxication shall have caused such damage, and not otherwise.’ It is insisted that this statute repealed by implication chapter 646 of the Laws of 1873,¹ and that, even if the legal effect was amendment, and not repeal, the right of action, accruing to defendant in June, 1891, under the act of 1873, and by virtue of which she had commenced this cation, was taken away. We regard both these propositions as unsound. The second section of chapter 403 of the Laws of 1892 does not cover the whole subject-matter of chapter 646 of the Laws of 1873, and its only effect is to amend the latter statute by requiring a certain notice in writing to be given before a cause of action can accrue. Whether a subsequent statute repeals a prior one, in the absence of express words, depends upon the intention of the legislature. Anderson v. Anderson, 112 N. Y. 111, 19 N. E. 427. While this intent is sufficiently manifest in the case at bar, upon the reading of the subsequent statute our attention has been called to the fact that on the same day chapter 403 of the Laws of 1892 was approved by the governor, (April 30, 1892,) and one hour before such approval, the executive approved chapter 401 of the Laws of 1892, known as ‘An act to revise and consolidate the laws regulating the sale of intoxicating liquors.’ Section 40 of this act clearly recognizes the action created by chapter 646 of the Laws of 1873, and provides no recovery shall be had ‘unless one of the persons who might have such a cause of action * * * shall, prior to such sale or giving away, have given written notice to the person selling or giving away such intoxicating drink, forbidding such sale,’ etc. The subsequent act, (chapter 403, Laws 1892,) which became law an hour after the above statute, is entitled ‘An act in relation to excise,’ and provides in the first section for the appointment of the clerks of excise boards, and the second section deals with the subject of notice as contained in Laws 1892, c. [141 N.Y. 164]401, § 40, already quoted, and provides the notice shall be given ‘to the licensee or his agents, or the person or persons so selling or giving away,’ etc., thus increasing the number of persons to whom notice may be given. It also extends the application of the notice to actions against persons owning or renting or permitting the occupation of premises where the offense occurred, which was not covered covered by said section 40. It is quite clear that the later statute was intended to supply omissions in the early one, and that both are to be read as amendatory of chapter 646 of the Laws of 1873, and not as repealing it by implication.

The defendant, however, insists that treating chapter 403 of the Laws of 1892 as amending chapter 646 of the Laws of 1873, its...