Fink v. Garman
| Decision Date | 24 July 1861 |
| Parties | Fink <I>versus</I> Garman. |
| Court | Pennsylvania Supreme Court |
furnished the liquor which produced the intoxication, which is not objectionable; but that the inebriate who is as culpable in taking, as the other party is in giving the liquor, should have a remedy against the landlord for any injury which he may suffer, would be most unjust. The legislature should have said so if this was their intention. The usual rules of construction will not warrant this interpretation of the statute. Garman stood in pari delicto. If living he could not maintain this action, and his widow stands in no better situation: Pennsylvania Railroad Company v. Ogier, 11 Casey 71. Even if he could, the action does not survive. The court below held that it did survive by virtue of the 18th and 19th sections of the Act of April 15th 1851, but these sections apply only to injuries that were actionable at common law, and which without them would have abated on the death of the injured party. They do not extend the jurisdiction of the common law, making that actionable which was not so before. The act was passed three years before the act, making parties liable for injuries resulting from the sale of intoxicating drinks. It has, therefore, no application. All injuries not actionable at common law, therefore die with the person. The terms "negligence and default" in the 18th section, means the "unlawful violence or negligence" mentioned in the 19th section. The former section preserves the action where the suit was commenced in the lifetime of the injured party — the latter gives an action where none was commenced in the lifetime of the injured party, where the death has resulted from "unlawful violence or negligence."
Nor does the Act of April 26th 1855, give a new cause of action for injuries causing death, but only limits the parties who are entitled to sustain an action under the previous acts to the husband, widow, children, or parents of deceased.
John Weidman and John C. Kunkle, for defendant in error.— The legislation on which this action is founded, will be found in the 18th and 19th sections of the Act of April 15th 1851, P. L. 674; the 1st and 3d sections of the Act of May 8th 1854, P. L. 663, and in the 1st section of the Act of April 26th 1855, P. L. 309.
The Act of April 15th 1851 gives a new right of action, which must of course be controlled and tried according to common law rules of evidence and practice, although founded solely on the statute. This right, given generally in 1851, is the remedy for the injury defined in the Act of 1854, on which this action is brought. The 1st section declares the wilfully furnishing intoxicating drinks as a beverage to a person when drunk or intoxicated, unlawful. That this was done by the defendant below the jury have found. The 3d section renders persons doing this, civilly responsible for any injury to person or property in consequence of such furnishing. Here the jury have found that plaintiff did sustain an injury in the loss of her husband. The charge of the court below renders further argument unnecessary.
The opinion of the court was delivered, July 24th 1861, by WOODWARD, J.
What this case was upon the pleadings, we are not informed, for they have not been exhibited. But from the charge of the judge, we learn that it was an action on the case, brought by the defendant in error, as widow of Jacob Garman, deceased, against Jacob Fink, the plaintiff in error and defendant below, for furnishing to the said Garman, a man of known intemperate habits, and at a time when he was intoxicated, an additional quantity of intoxicating liquor, by which he became so inebriated that he fell from his horse under the wheels of his wagon, and was instantly killed. Fink was a licensed innkeeper.
The action is grounded on the 19th section of the Act of Assembly of April 15th 1851, that gives to the widow, or personal representative of a decedent, an action for damages when the death of the decedent is occasioned by "unlawful violence or negligence." The 18th section provides, that no action brought by the person injured by the "negligence or default" of another, shall abate by reason of the death of the plaintiff, but shall survive to his personal representative.
Counsel insist that these sections were not intended to create any new cause of action unknown to the common law, but only to prevent the abatement of personal actions, according to the common law maxim, Actio personalis moritur cum persona.
The 18th section was apparently intended to regulate a common law right of action, by securing to it survivorship; but the 19th section was creative of a new cause of action, wholly unknown to the common law. And the right of action was not given to the person suffering the injury, since no man could sue for his own death, but to his widow or personal representative. It was not survivorship of the cause of action which the legislature meant to provide for by this section, but the creation of an original cause of action in favour of a surviving widow or personal representative. It was quite competent for the legislature to alter the common law in this regard. They did so by giving parties a right of action who had none before. To give the section the restricted construction suggested in the argument, would be to repeal it, for no such action as the present could pre-exist to survive the death of the injured party.
The widow's right of action, therefore, would seem to be unquestionable, if her husband's death was occasioned by the "unlawful violence or negligence" of the defendant. Was it? In other words, was it unlawful negligence for the defendant, an innkeeper, to give or sell liquor to a man of known intemperate habits, who was already intoxicated? The court below thought it was, for reasons that are fully set forth in the charge, and we are inclined to concur with the learned judge.
The 8th section of the Act of May 8th 1854, Pamph. L. 663, makes it a misdemeanor, punishable by fine and imprisonment, to furnish intoxicating drinks to a person of known intemperate habits, or to any person when drunk or intoxicated.
The 3d section of the same act subjects the offender to...
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