Harris v. Hardesty

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, J.:
• Citation: Harris v. Hardesty, 111 Kan. 291, 207 P. 188 (Kan. 1922)
• Decision Date: 06 May 1922
• Docket Number: 23,724
• Parties: HELEN MAUD HARRIS, a Minor, by SARAH C. KEIHL, Her Next Friend, Appellant, v. FRANK HARDESTY, Appellee

207 P. 188

111 Kan. 291

HELEN MAUD HARRIS, a Minor, by SARAH C. KEIHL, Her Next Friend, Appellant, v. FRANK HARDESTY, Appellee

No. 23,724

Supreme Court of Kansas

May 6, 1922

Decided January, 1922.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS--Intoxicated Parent--Minor Injured in Means of Support--Civil Damage Statute Construed. The civil-damage statute, giving to a child injured in means of support, in consequence of intoxication of its parent, a right of action against the person who caused the intoxication (Gen. Stat. 1915, § 5507), affords remedy against none but a person who, by "selling, bartering, or giving intoxicating liquors," caused the intoxication.

2. SAME. The giving of intoxicating liquor, referred to in the statute, means giving as a subterfuge or device to evade the provisions of the prohibitory law.

3. SAME--Action for Civil Damages--Petition Fails to State Cause of Action. The plaintiff is a minor. The petition alleged the defendant induced her mother to drink intoxicating liquor, procured, bought and furnished intoxicating liquor and gave it to her mother to drink, which liquor her mother did drink, to such an extent she became habitually intoxicated. As a consequence of such intoxication, the plaintiff was injured in means of support. Held, the petition failed to state a cause of action, under the civil-damage statute; and under the common law, the plaintiff was without remedy.

Frank Doster, J. G. Waters, J. C. Waters, and J. E. Addington, all of Topeka, for the appellant.

C. A. Smart, of Lawrence, and A. E. Crane, of Topeka, for the appellee.

OPINION

BURCH, J.:

The action was one by a minor for damages resulting from loss of support occasioned by drunkenness of her mother, caused by the defendant. A demurrer to the petition was sustained and the plaintiff appeals.

The petition alleged the plaintiff's parents had separated, her father had gone from the state of Kansas, and she was dependent on her mother for support. The defendant induced her mother to drink intoxicating liquor, procured, bought and furnished intoxicating liquor and gave it to her mother to drink, which liquor her mother did drink, to such an extent she became habitually intoxicated. As a consequence of such intoxication, the plaintiff was injured in means of support. The petition contained allegations of malice on the part of the defendant, and of anguish, humiliation and disgrace on the part of the plaintiff, and prayed for both actual and punitive damages.

The remedy accorded by civil-damage laws was unknown to the common law and, without a statute, the plaintiff could not recover. Besides that, at common law an infant could not enforce parental obligation to support, and had no remedy against a third person for deprivation of parental support.

The statute under which the action was commenced reads as follows:

"Every wife, child, parent, guardian or employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent or guardian shall have a right of action, in his or her own name, against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parents, guardian, or next friend, as the court shall direct; and all suits for damages under this act shall be by civil action in any of the courts of this state having jurisdiction thereof." (Gen. Stat. 1915, § 5507.)

This section is part of the prohibitory law of 1881, and is a continuation of a section of the dramshop act of 1868. ( Jockers v. Borgman, 29 Kan. 109.) The title of the dramshop act is as follows:

"An act to restrain dramshops and taverns, and to regulate the sale of intoxicating liquors." (Gen. Stat. 1868, ch. 35.)

The title of the prohibitory law of 1881 is as follows:

"AN ACT to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes." (Laws 1881, ch. 128.)

It was necessary, under the constitution, which requires a bill to contain but one subject, which shall be clearly expressed in the title (art. 2, § 16), that the civil-damage provision be germane to the declared purposes of the two statutes. In the case of Werner v. Edmiston, 24 Kan. 147, the court considered the relation of the civil-damage section to the dramshop act. The opinion reads:

"It is insisted that said sections 9 and 10 are unconstitutional, because they contain matter foreign to that in the other sections of the act, and not expressed in the title to the act. The title of the act is, 'To restrain dramshops and taverns, and to regulate the sale of intoxicating liquors.' The other sections contain provisions as to licenses, penalties for sales without license, prohibitions of sales upon certain days and to certain persons. Section 9 provides that any one who causes the intoxication of another shall be compelled to pay for his care while so intoxicated; and section 10, that every person who is injured in his property or means of support by any intoxicated person, or in consequence of intoxication, may recover therefor of the person causing such intoxication.

"Now it seems to us that these matters come fairly within the scope of the title. They name certain conditions upon which one may sell liquor. The act in substance says to a party that you must not sell without a license; that when licensed you must not sell on certain days or to certain persons; and that if you sell, you will be held liable for the injury the liquor causes. Is not all this the regulation of the sale of intoxicating liquors?" (p. 151.)

In the case of Durein v. Pontious, 34 Kan. 353, 8 P. 428, the court considered the relation of the civil-damage section to the prohibitory law of 1881. The opinion reads:

"It is first contended that said section 15 is unconstitutional, for the reason that the title of the act is not broad enough to cover it. The title of the act is, 'An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific, and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.' This court has passed upon this question in the case of Werner v. Edmiston, 24 Kan. 147. That action was under section 10 of the act of 1868, entitled 'An act to restrain dramshops and taverns, and to regulate the sale of intoxicating liquors.' Section 15 of the statute of 1881 was bodily transferred from the dramshop act of 1868. The prohibitory liquor law of 1881 not only provides for prohibition, but also for the regulation of the sale of intoxicating liquors. The title of the act of 1881 is as broad as the title of the act of 1868, so far as embracing therein the provisions of said section 15; and the case of Werner v. Edmiston, supra, is therefore controlling." (p. 359.)

Very soon after the enactment of the prohibitory law, the court had occasion to consider fully the relation of provisions of the act to its title. The law contained a section making it unlawful for any person to become intoxicated. In the case of The State v. Barrett, 27 Kan. 213, it was held the section was not within the scope of the title, and in the opinion it was said:

"All that it seems to have had in contemplation was the prohibition of the manufacture and sale of intoxicating liquors in certain cases, and the regulation of the manufacture and sale of intoxicating liquor in certain other cases. With regard to what should be done with the liquors, independently of their manufacture and sale, it was silent. The title to the act does not, in the slightest or most remote degree, refer to the use of the liquor in the abstract. So far as the title of the act is concerned, after the liquor has been manufactured and sold, any person in the lawful and bona fide possession of it may use it as he sees fit; he may drink it, or burn it, or give it away, or he may use it in any other manner or for any other purpose to which his inclinations may lead him. The title to the act is wholly silent with reference to these matters. When the liquor is manufactured and sold, if manufactured and sold and purchased in good faith and according to law, the title to the act has then spent its force; it has then no further room for operation; its mission is then ended. When the sale is completed, it can have no further application to any transaction. . . .

"Of course we know that the indirect and remote object of the title to the act, as well as of the act itself, is to prevent drunkenness, to...