Burk v. Anderson

• Citation: 109 N.E.2d 407,232 Ind. 77
• Decision Date: 22 December 1952
• Docket Number: No. 28944,28944
• Court: Supreme Court of Indiana
• Parties: BURK v. ANDERSON et al.

Page 407

109 N.E.2d 407

232 Ind. 77

BURK v. ANDERSON et al.

No. 28944.

Supreme Court of Indiana.

Dec. 22, 1952.

R. C. Parrish and Robert J. Parrish, Ft. Wayne, for appellant.

James P. Murphy and Ira D. Snouffer, Ft. Wayne, for appellees.

GILKISON, Judge.

By her complaint in two paragraphs appellant sued appellees, charging them with selling intoxicating liquor to her husband in violation of § 12-615, Burns' 1942 Replacement, ¹ causing his death, and thereby depriving her of his society, support and maintenance. A demurrer to this complaint was sustained. Appellant declined to plead further, and judgment was rendered that she take nothing and that she pay the costs. From this judgment the appeal is taken.

The complaint by proper statements avers that plaintiff is the widow of Russell Burk, deceased, who was 62 years of age at his death. That at the time of his death he was capable of earning $45 per week. That the appellees owned and operated a tavern in New Haven, Indiana, on March 16, 1951, at which they sold intoxicating liquor at retail. That her husband went to this tavern on said date after he had completed his day's work and there appellees carelessly, negligently and unlawfully sold, bartered and gave him large quantities of intoxicating liquors when he was intoxicated as appellees well knew, and which he drank on their premises, from which he became completely intoxicated. That while he was in a state of complete intoxication her husband got into his automobile to drive to his home at Shirley, Indiana. That while so traveling he drove upon the berm of the road and his automobile mired down. That he then got out of the automobile and because of being so intoxicated he fell into the ditch at the road-side and was drowned. That thereby appellant was deprived of the support, society and maintenance of her husband, to her damage in the sum of $15,000, for which she prays judgment.

The second paragraph is similar to the first, except it is charged that the sales and gifts of intoxicating liquor were wilfully, intentionally, unlawfully and knowingly made to plaintiff's husband when he was in a state of intoxication, and were the proximate cause of his drowning; and thereby appellant was deprived permanently of his support, society and maintenance to her damage in the sum of $15,000 for which she prayed judgment.

The demurrer is for two causes:

(1) That the complaint does not state facts sufficient to constitute a cause of action, and

(2) The plaintiff has no legal capacity to sue.

By her complaint and in argument appellant expressly waives any claim under the wrongful death statute. Sec. 2-404, Burns' 1946 Replacement Supplement.

The sole question presented by the appeal is: When a husband is killed as a result of the negligent, purposeful, wilful and intentional supplying him with intoxicating liquor to drink when he is already intoxicated, may the widow maintain an action in her own right against the tort-feasor, to collect the damages she has thereby sustained, in loss of support, society and maintenance?

Our court is agreed that when a wife is tortiously injured by another either negligently or designedly, the husband has an independent right of action against the tort-feasor, for his loss of the services, society, companionship and all that is contained in the word 'consortium' of the wife, resulting from such injury. It is the belief of the writer of this opinion that when a husband is tortiously injured by another either negligently or designedly the wife, under our enabling statutes, has an independent right of action against the tort-feasor, for her loss of support, society and maintenance of the husband, resulting from such injuries. It is my though that the consortium rights of one spouse is coextensive...