Flower v. Witkovsky

• Citation: 69 Mich. 371,37 N.W. 364
• Court: Supreme Court of Michigan
• Decision Date: 13 April 1888
• Parties: FLOWER v. WITKOVSKY.

37 N.W. 364

69 Mich. 371

FLOWER v. WITKOVSKY.

Supreme Court of Michigan

April 13, 1888

Error to circuit court, Tuscola county; WATSON BEACH, Judge.

Action of trespass on the case brought by Flower, plaintiff, against Witkovsky, defendant, under act Mich. 1881, No. 259, � 2, as amended by act 1883, No. 191, � 16. There was a judgment for plaintiff, and defendant brings error.

Black, Gray & Corcoran, (Black, Moran, Wilkins & Gray, of counsel,) for appellee.

MORSE J.

The plaintiff sues under section 2, act No. 259, Sess. Laws 1881, as amended by section 16, act No. 191, Laws 1883. The declaration is in three counts. The first count charges in short that the defendant, on the 9th day of November, 1885, in the county of Tuscola, not being then and there a druggist, unlawfully and against the statute sold furnished, and delivered to one Gideon J. Dickinson, Jr., a minor, whisky, which said Dickinson drank, and thereby became intoxicated, and that upon said day, while so intoxicated he, said Dickinson, drove a horse, attached to a buggy, upon a public street, in the village of Caro in said county, and by reason of such intoxication, wrongfully, and with great force and violence, did drive said horse and vehicle upon and against the horse and buggy of the said plaintiff, and drove one of the thills of said vehicle into the body of the plaintiff's horse, 18 inches, whereby the said horse was then and there killed; also broke one of the wheels and the cross-bar of the plaintiff's buggy. The plaintiff also averred that his horse and buggy were lawfully in the said public street, and in charge of a competent driver, and that the injury complained of was committed by the negligence of said Dickinson, and without the fault of the said plaintiff, or his agent, the driver of his horse. He claimed an action had accrued under the statute, and laid his damages at $500. The second count followed the first, with the exception that it charged the sale of the whisky to James W. Callen, a minor, and that he was driving the horse which occasioned the damage. The third count differed from the others in averring the sale of the liquor to both Callen and Dickinson, and that they were both driving at the time of the injury to plaintiff's property. The plaintiff, in the circuit court for the county of Tuscola, before a jury, recovered a judgment against the defendant in the sum of $112. The objections to the validity of this judgment are all directed against the instructions of the court to the jury, and to his refusal to charge as requested by the counsel for the defendant. At the close of the evidence, the counsel for plaintiff admitted that the plaintiff did not, at the time of the collision, or of the selling of the liquor by defendant to Dickinson or Callen, sustain to either of them the relation of parent, child, husband, or wife, guardian, employer, or employe, or any similar relation whatsoever. Thereupon the defendant's counsel, upon such admission, based a request that the court should direct a verdict for the defendant, which request was refused.

It is argued that the statute does not contemplate an action by any other person than one holding a relationship of the same general character, sort, or kind as those specifically mentioned in the statute as the persons to whom a right of action is given; and that the plaintiff cannot be regarded as holding any such relationship. The statute provides that "every wife, child, parent, guardian, husband, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling giving, or furnishing any spirituous, intoxicating, fermented, or malt liquors to any person, shall have a right of action in his or her own name against any person or persons who shall, by selling or giving any intoxicating or malt liquor, have caused or contributed to such injury," etc. I have here given so much of the statute as bears upon the case in hand. The words "or other person" seem to have been intended by the legislature to cover all persons iujured in person or property by intoxicated persons. In Brooks v. Cook, 44 Mich. 617, 7 N.W. 216, it was held that this statute did not give a right of action to a person injured by his own intoxication, and good reason is there given for such holding. It is intimated, however, on page 619, that a traveler, injured by an intoxicated person passing him on the street, would have an action under the statute against the person selling or giving the liquor to such...