Duckworth v. Stalnaker
| Decision Date | 22 November 1910 |
| Citation | 69 S.E. 850,68 W.Va. 197 |
| Parties | DUCKWORTH v. STALNAKER. |
| Court | West Virginia Supreme Court |
Submitted March 2, 1909.
Syllabus by the Court.
If a husband whose labor contributes to his wife's support becomes intoxicated in a saloon owned by, or under the control of, a licensed saloon keeper, by drinking intoxicating liquors sold or given to him by such saloon keeper or his clerk, and in consequence of such intoxication becomes boisterous, and offensive to others there present, and is forcibly ejected from the saloon by the barkeeper and physically injured and disabled from performing his usual labors, the wife has a right of action, under the civil damage act (Code 1906, c. 32, § 26), against the saloon keeper for damages for injury to her means of support.
In an action for damages in such case, the jury have a right to regard the intoxication of the husband as the proximate cause of his physical injury, and the injury to the wife's means of support as a natural consequence resulting from the unlawful sale of intoxicating liquor.
The common-law rule of proximate cause, which obtains in other actions of tort, does not apply to actions under section 26 c. 32, Code 1906, known as the civil damage act. By this act the Legislature has created a right of action which did not exist at the common law; and, in order to support such action, it is only necessary that the injury complained of should be in consequence of the unlawful act; it need not be the direct, or proximate, result of it.
A principal is liable for the torts of his agent, when committed in the course of his employment; and, in an action for damages under the civil damage act, the saloon keeper is liable for unlawful sales of intoxicating liquors by his clerk or barkeeper.
A declaration in an action by the wife for damages, under the civil damage act, for injury to her person, property, and means of support, is not demurrable on the ground that it avers the nature, extent, and cause of her husband's physical injury, when it appears from the declaration, as a whole, that she is not seeking a recovery for injury to the husband. Such averment is only for the purpose of showing the manner and extent of the wife's injury to her means of support.
In order to support an action under this act, some actual damage to the physical person, property, or means of support must be proven; mental anguish is not alone sufficient. But, if actual damages be shown, mental anguish may be considered by the jury in augmentation of damages.
In such action it is not error to admit proof of the nature and extent of the husband's injury, and of the facts and circumstances connected with it; his injury being the cause of the injury to the wife's support.
The civil damage act gives a right to exemplary damages, as well as actual damages, and the jury may award exemplary damages upon proof of such facts only as will entitle the party complaining to actual damages. It is not necessary, as it is in other actions for torts, that the wrong complained of should have been committed maliciously, or wantonly and deliberately, in order to justify the finding of exemplary damages; the unlawfulness of the act is sufficient under the statute.
The jury are vested with a discretion in the matter of awarding exemplary damages, and it is error for the court to instruct them that, if they believe certain facts to be established by the evidence, they "shall" or "must" find exemplary damages.
The disjunctive word "or" cannot generally be used in the sense of the conjunctive word "and," and an instruction is erroneous which, in effect, tells the jury that a sale of intoxicating liquor to a person "at a time when he was intoxicated, or when the defendant or his barkeeper or clerks or any of them knew or had reason to believe" he was intoxicated, is an unlawful sale. Actual sale to an intoxicated person, and knowledge, actual or constructive, by the seller, of such intoxication, are two essential elements of one offense; and the word "or," instead of "and," in the instruction, conveys the idea that either element of the offense, without the other, is sufficient to constitute an unlawful sale, which is erroneous.
In such action it is error to refuse an instruction, asked for by defendant, which would have told the jury that plaintiff is not entitled to recover damages for personal injury to her husband.
It is not essential to the validity of a bill of exceptions that the official designation of the trial judge should be used after his signature. His signature thereto alone is sufficient.
An order of court, or of the judge in vacation, made within 30 days from the adjournment of the term at which a case is tried, and entered on the record, which refers to the bills of exceptions taken at the trial by numbers, as No. 1, No. 2 etc., and makes them parts of the record by such designation and description, is sufficient to constitute them parts of the record, provided they have been signed by the judge.
Error to Circuit Court, Barbour County.
Action by Martha J. Duckworth against Floyd Stalnaker. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Leroy V. Holsberry, for plaintiff in error.
Ware & Viquesney and Wm. T. George, for defendant in error.
Martha J. Duckworth brought an action in the circuit court of Barbour county, under the civil damage act, against Floyd Stalnaker, a licensed saloon keeper, to recover damages for injury to her means of support alleged to be in consequence of unlawful sales of intoxicating liquors to her husband, and obtained a judgment for $1,500. Defendant was awarded a writ of error.
Counsel for defendant in error insists that the bills of exceptions are not sufficiently identified to constitute them parts of the record. They are 11 in number, and are all signed by the trial judge. No. 11 does not have the judge's official designation after his signature. But this omission is not material. The name subscribed to this bill of exceptions is the same as the name signed to the others, and we must assume that the same person signed all of them, and that the judge signed No. 11 in his official capacity. While it is the usual practice for the trial judge to sign bills of exceptions, and to give his official designation, still we know of no rule of law which makes such manner of signing essential to their validity. Seeing that the name signed to No. 11 is the same as the name of the trial judge, we take judicial notice that this bill of exceptions was signed by the judge who tried the case, and that he signed it in his official capacity. The law makes it the judge's duty to sign bills of exceptions, and, when his name appears signed thereto, it is not to be presumed that he signed otherwise than as judge. But, in addition to the judge's signing bills of exceptions, it is also essential that they be made parts of the record by an order entered on the records. 5 Ency. Dig 394, and cases cited.
The bills of exceptions, in the present case, were made up in vacation within 30 days after the adjournment of the term at which the trial was had, and a vacation order was made by the judge and certified to the clerk who recorded the same. But, it is claimed, the vacation order made by the judge does not sufficiently identify the bills of exceptions. The order refers to them, and makes them parts of the record, by numbers only, as 1, 2, 3, etc. This, we think, is sufficient to make it reasonably certain that the exceptions so designated in the order are the same that were signed by the judge.
Two things are essential to constitute a bill of exceptions a part of the record: (1) The signing of it by the judge; (2) an order of the court, or of the judge in vacation made within 30 days and entered on the records of the trial court, incorporating it into the record. Both of these essentials have been complied with in this case, and the bills of exceptions must be regarded as a part of the record of the case.
Plaintiff in error insists that the court improperly overruled his demurrer to the declaration. One ground of demurrer is that the declaration seeks to recover for the injury to plaintiff's means of support, and also for the personal injury sustained by the husband. Another ground is that the declaration does not sufficiently state a cause of action for damages for injury to plaintiff on account of an unlawful sale of intoxicating liquors to her husband.
There are two counts in the declaration. The substance of the first is that defendant, a licensed saloon keeper, sold and gave to plaintiff's husband intoxicating liquors, and permitted him to drink the same upon defendant's premises, until he (plaintiff's husband) became grossly intoxicated, and, after he became intoxicated, defendant pushed him out of his saloon and, in doing so, broke his leg, in consequence whereof he was unable, for a long time, to furnish plaintiff the means of support, which he had furnished her prior to his injury; that in consequence plaintiff was uncared for by her husband, and suffered hardship, privation, and mental anguish and worry.
The second count differs from the first in that it alleges the unlawful act to consist in the defendant's selling and giving intoxicating liquors to plaintiff's husband knowing and having reason to believe that he was a person who was in the habit of drinking to intoxication. It also avers that her husband fell and broke his leg in consequence of his intoxication produced by defendant's unlawful sales, and that he neglected his work, and squandered his money, and that in consequence thereof plaintiff was injured in her means of support. Each of these counts contains sufficient averment to...
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