Hollis v. Davis

• Citation: 56 N.H. 74
• Parties: Hollis v. Davis.
• Decision Date: 13 August 1875
• Court: Supreme Court of New Hampshire

56 N.H. 74

Hollis v. Davis.

Supreme Court of New Hampshire

August 13, 1875

Injuries from intoxication---Act of 1870---Liability of persons unlawfully furnishing spirituous liquors.

Section 3 of chapter 3 of the Act of 1870, making a person unlawfully furnishing spirituous liquor responsible for injuries resulting therefrom, does not give a party upon whom a person becomes dependent in consequence of intoxication produced by liquor unlawfully furnished, and who was not

previously dependent on such party, an action against the person so unlawfully furnishing the liquor, for the damages resulting from such intoxication

From HILLSBOROUGH Circuit Court

CASE. There was a demurrer to the declaration, and the questions arising thereon were transferred to this court by RAND, J.

The declaration was as follows: "In a plea of the case for that by chapter third of the Pamphlet Laws of this state,^[*] passed June session of the legislature, A. D. 1870, being 'an act in amendment of chapter ninety-nine of the General Statutes, relating to the sale of spirituous liquors,' it is, among other things enacted,---in case of the disability of any person in consequence of intoxication from the use of liquor unlawfully furnished, any party on whom such injured person may be dependent may recover, from the person unlawfully selling or furnishing any such liquor as aforesaid, all damage or loss sustained in consequence of such injury, to be recovered in an action on the case; and whereas, on the 26th day of November, A. D. 1873, at Brookline, in said county, the said defendant, not being then and there an agent of said town of Brookline, appointed to sell liquors according to the provisions of chapter ninety-nine of the General Statutes of this state, being an act of the legislature of said state entitled 'sale of spirituous liquor,' did with force and arms, then and there, to wit, on the 26th day of November, 1873, at Brookline aforesaid, unlawfully and criminally sell or furnish a large quantity, to wit, two quarts, of spirituous liquor to one Peter Smithwick, of Hollis, in said county: and the plaintiffs aver, that on said day and year last aforesaid, at said Hollis, the said Peter Smithwick, in consequence of intoxication from the use of said liquor so unlawfully furnished or sold to him, the said Peter Smithwick, by said defendant, as aforesaid, he, the said Peter Smithwick, became and was disabled thereby, in this, to wit, the feet of said Peter Smithwick were frozen and the said Peter, since said 26th November, 1873, has been and still continues to be unable to labor or do anything for his support and

maintenance and thereby became confined to the house,---and said Peter is otherwise disabled: and the plaintiffs further aver, that the said Peter, on the 26th day of November, A. D. 1873, at said Hollis, became poor and unable to support himself, and hitherto continues to be poor and unable to support himself and destitute of all property, and on said 26th day of November, A. D. 1873, at said Hollis, the said Peter Smithwick had not, nor has he at any time since, had relatives in the line of father or grandfather, mother or grandmother, children or grandchildren, of sufficient ability to maintain him. the said Peter Smithwick, while so standing in need of relief: and the plaintiffs further aver, that on the day and year last aforesaid, and hitherto, the said Peter Smithwick had and still continues to have his settlement in said town of Hollis, by reason of which the said Peter Smithwick, on said 26th day of November, A. D. 1873, at said Hollis, was and still continues to be dependent on said town of Hollis for his support and maintenance, by reason whereof it became, on said 26th day of November, A. D. 1873, and hitherto, the duty of the overseers of the poor of said town of Hollis to relieve and maintain him, the said Peter Smithwick,---and the said town of Hollis then and there were and still continue by law liable for the support and maintenance of said Peter Smithwick; and for the reasons aforesaid, the said town of Hollis have been at a great charge and expense in maintaining and supporting the said Peter, from the 26th day of November, A. D. 1873, hitherto, and have spent and laid out divers sums of money therefor, amounting to the sum of one hundred and thirty-three dollars and fifty-seven cents, according to the items annexed hereto, as follows:

Attendance of Dr. Willoby on Peter,

$90.00

Board, nursing, &c., at $5.00 per week,

38.57

Providing board, physician, &c., by selectmen; time, &c., 5.00 And said Peter is for life rendered incapable of doing anything for his support, and thereby said town of Hollis are liable for the support and maintenance of said Peter during his life, all of which is to the damage of the said plaintiffs (as they say) the sum of one thousand dollars."

A. W. Sawyer, for the plaintiff

This action is founded upon Pamphlet Laws, 1870, ch. 3, sec. 3. There are five things necessary to entitle any party to an action. (1) A disability. That disability is set forth in the declaration. (2) A disability in consequence of intoxication, &c. That is also set forth in the declaration. (3) A disability in consequence of intoxication from the use of liquor unlawfully furnished. Those matters are also so set forth. (4) A dependency. That is set forth in the declaration. Any party on whom such injured person may be dependent, may recover from the person unlawfully selling or furnishing any such liquor---liquor which disables in consequence of intoxication, and which was unlawfully furnished. Hollis is the party on whom Peter, the injured person, was

dependent; and that is set forth in the declaration. (5) Damages. Those have resulted to Hollis in consequence of the disability of Peter. He became poor, and unable to support himself. If the overseers of the poor of Hollis had wilfully neglected or refused to relieve and maintain Peter, they could have been indicted. The demurrer admits all the facts, which are well set forth. Where there is sufficient matter substantially alleged to entitle the plaintiff to his action, the declaration will be good on a general demurrer. Dole v. Weeks, 4 Mass. 451. This law of 1870 is an amendment of chapter 99 of the General Statutes, relating to the sale of spirituous liquors; and in construing chapter 3, section 3,1870, the court ought to have reference to the general policy of the law of the state at the time this law---1870---was enacted. 39 N.H. 321,195; 27 N.H. 129; 37 N.H. 305; 46 N.H. 124; 1 N.H. 107; 30 N.H. 170. The plaintiffs submit that this statute was intended to embrace within its objects and remedies just the case at bar. The plaintiffs have shown by the declaration that they are party,---as much so as the father of Peter might have been a party had he been alive and of sufficient ability to have maintained Peter, and living at said Hollis. This statute may be said to be additional to chapter 74, giving the right of action to a town which has been damaged, or has sustained loss in consequence of such injury, such town being obliged to furnish relief to the injured person. The plaintiffs contend cases may arise under this statute of 1870, when the father or grandfather, mother or grandmother, children or grandchildren, of sufficient ability, wife, or town, or city, may be the party on whom such injured person may be dependent, and hence the one to bring the action. The statute of 1870 uses the word party, which is broad enough, of itself, to include persons male or female, bodies corporate and politic, as well as individuals; and hence there is no necessity to call in aid the chapter on construction of statutes. The statute in spirit, and, as the plaintiffs contend, in terms, supports the position taken, that the town or city on whom such injured person may be dependent may recover, &c. Until the plaintiffs hear from the defendant, the plaintiffs rest their brief upon the statute itself as embracing just such a case as this. G. Y. Sawyer & Sawyer, Jr., and P. Dodge, for the defendant

I. If the provision of the act of July 2, 1870, upon which this action is founded, can be held valid under our constitution, in any case, it nevertheless does not include the case of municipal corporations like the plaintiff town, where the only injury complained of is the burden of a pauper's support. It is true, the act might be construed to include such corporation, if sound policy required it. We contend that sound policy forbids it.

It is clear that the general policy of the law in this state, in relation to the relief of the poor, is, that the burden shall be made to fall on town or county municipalities where the burden of their support may be sustained, without the risk of reducing others to pauperism. It is

on this ground---that of sound public policy---that the courts of this state, ever since the early cases in the 4th New Hampshire Reports---Hillsborough v. Deering, 94, and Dover v. McMurphy, 158---have refused to give to the statute making parent and child liable for the support of the other when in need of relief, the construction which its terms would seem to require, or, at least, would clearly admit that the parent or child sought to be charged should be held liable for the support when he has the means to supply it for the time being. The language of that statute is, in substance, that "the relations * * in the line of father, &c., children, &c., of sufficient ability, shall be liable, &c." There is nothing in its terms to forbid the construction that the father, &c., should be liable for the support, if he had means to pay for it, at the time the support was needed. Indeed, such is the meaning of the language used, as it would be commonly understood; and it...