Friend v. Dunks

• Decision Date: 12 June 1877
• Citation: 37 Mich. 25
• Court: Michigan Supreme Court
• Parties: William Friend v. Helen M. Dunks

37 Mich. 25

William Friend v. Helen M. Dunks

Supreme Court of Michigan

June 12, 1877

Argued April 13, 1877

Error to Lenawee. (Pratt, J.)

Case. Defendant brings error. Reversed.

Judgment reversed, with costs, and a new trial ordered.

Shumway & Salsbury and Stacy & Underwood for plaintiff in error. Actions of contract and of tort cannot be joined in the same declaration, in different counts. 1 Chitty's Pl 199; Church v. Mumford 11 Johns. 479; Hallock v. Powell 2 Caines 216; Wickliffe v. Sanders 6 T. B. Mon. 298; Thomas v Pearse 1 Chitty 619. Assumpsit, covenant and debt cannot be joined with each other, nor trespass with case.--Bac. Ab. "Actions in General," C.; Cooper v. Bissell 16 Johns. 146. In case of misjoinder, the declaration will be held bad on general demurrer, or in arrest of judgment, or on error. Pell v. Lovett 19 Wend. 546; Whitney v. Crim 1 Hill 61; Bodley v. Roop 6 Blackf. 158; West v. Stanley 1 Hill 69; Pharr v. Bachelor 3 Ala. 237. Judgment is sometimes allowed on a verdict rendered on one of several counts after an election between them, but an election on the trial is often refused. 2 Saunders Pl. and Ev., note C.; 2 M. & Sel 533.

Walker & Weaver and Bean & Hadley for defendant in error.

OPINION

Marston, J.

The plaintiff in error was brought into court upon a capias to answer to the suit of Helen M. Dunks "in an action of trespass on the case for selling and giving liquor to Edward J. Dunks, her husband, in violation of law, and contributing to the intoxication of said Edward J. Dunks, to the damage of said plaintiff," etc.

The declaration consists of but one count and under it plaintiff sought to recover back the moneys paid bye her husband to defendant for liquor, and also damages for the injury which she sustained by reason of the intoxication of her said husband. Counsel for plaintiff in error insist that there was a misjoinder of two distinct causes of action in this count, an action of assumpsit to recover back the moneys paid for the liquors sold, and an action of tort to recover damages for the injuries sustained by reason of the intoxication of her husband.

That such causes of action cannot be joined in this manner counsel for defendant in error do not deny, nor do they dispute the effect of such a misjoinder. They deny any misjoinder; they say there is in the declaration no count in assumpsit; that the statute gives the wife the right to recover back the money, and to recover the other damages enumerated; that the whole cause depends upon the wrongful and unlawful acts of the defendant, and that case is the appropriate remedy.

That this is the appropriate remedy to recover any damages which the plaintiff has sustained by reason of such intoxication of her husband there can be no question, and this is conceded by counsel for both parties. It seems therefore only necessary to determine whether it is also the appropriate form to recover back moneys paid for spirituous or intoxicating liquors under the statute.

The statute under which this action was brought prohibited the manufacture and sale of certain kinds of liquors except as therein specified. The second section provided that all payments for such liquors sold in violation of law should be considered as having been received without consideration, and against law and equity, and that any money or other property paid therefor might be recovered back by the person so paying the same, his wife, or any of his children, or his parent, guardian, husband or employer. Farther on in this same section, every wife, child, parent, guardian, husband or other person, 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, shall have a right of action against any one who by selling or giving intoxicating liquor caused or contributed to the intoxication of such person, and in any such action the plaintiff shall have a right to recover actual and exemplary damages. These are the provisions under which this action was brought. The statute does not prescribe the form of remedy, so that the party seeking to recover under either of these provisions must resort to the common law for an appropriate form of action.

That assumpsit is the proper form of action to recover back moneys which have been received by a person without consideration and against law and equity, there could seem to be no reasonable doubt. And the late cases in this State, sustaining the right of the party making such payments, to set off the same, in an action brought against him, is a clear recognition of this principle. Roethke v. Philip Best Brewing Co. 33 Mich. 340; Webber v. Howe 36 Mich. 150.

We consider it equally clear that case is not the appropriate remedy. There are also other considerations arising out of these statutory provisions which would prevent claims arising thereunder from being recovered under the same form of action and count as was attempted in this case. It is quite clear that if either of the persons mentioned under the first clause, brings an action and recovers back the moneys paid for such liquors, neither of the other persons named could thereafter bring an action to recover back the same moneys. The first action would be a bar to any future action that might be brought. The money paid could be recovered back but once, and a recovery by one would prevent a recovery by the others. This would not be so in reference to injuries sustained. Several persons may at the same time be injured, in person, property or means of support by an intoxicated person, or by reason of his intoxication, and the injury to each, where several, would entitle each to maintain a cause of action therefor. And where several such actions were brought, the defense might vary somewhat in each case, yet would be substantially the same. The defenses however in an action brought to recover back money paid as being paid without consideration, and in an action to recover damages sustained, would be very different, and the evidence introduced in each case would in many respects, be different also.

In the former action, which is an equitable one, the party endeavors to prove the amount paid, and the issue is limited and simple. In the latter the party is entitled to recover the actual damages sustained, and also exemplary damages. Under such an issue it is very evident that the evidence introduced must take a much wider range than it possibly could in the other case, and any joinder of the two causes of action, could but lead to confusion and injurious results. The objections made in the court below upon this branch of the case should have been sustained.

As the case must go back for a new trial, and as this difficulty may be obviated by an amendment of the declaration, by striking out all claim for moneys paid, thus making it conform with the writ, we will proceed to consider such of the other questions raised as are likely to arise again upon a new trial.

During the trial counsel for the plaintiff introduced evidence tending to prove the amount and value of plaintiff's husband's property and business when first he became a resident of Hudson in 1865 and when he left Hudson in 1875. They also introduced evidence tending to show how plaintiff's health was injuriously affected on account of her husband's intoxication; that she was excluded from society on account thereof, and her mental sufferings generally on account of his drunkenness. This was all objected to and is assigned as error.

Our statute gives to the wife who has been 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 her own name against the person who has by selling or giving any intoxicating liquor or otherwise, caused or contributed to such intoxication, "and in any such action the plaintiff shall have a right to recover actual and exemplary damages."

In Mulford v. Clewell 21 Ohio St. 191, it was held that a count in the declaration which merely charged that the plaintiff had suffered mental anguish, disgrace and loss of society or companionship, was not sufficient; that such suffering did not amount to "injury to the person" within the meaning of the statute. Without any desire at present to either approve of this ruling or to question its correctness, our statute, in the light of previous decisions in this Court, may admit of a different construction.

The wrong committed by the defendant in selling intoxicating liquors to the plaintiff's husband, was not only in open violation of the laws of this State, but was persistently persevered in by the defendant, regardless alike of the suffering and ruin he was...