Iszler v. Jorda, 7530

• Decision Date: 29 January 1957
• Docket Number: No. 7530,7530
• Citation: 80 N.W.2d 665
• Parties: Gottlieb ISZLER and Christina Iszler, Respondents, v. Peter JORDA and Irene Jorda, Appellants.
• Court: North Dakota Supreme Court

Page 665

80 N.W.2d 665

64 A.L.R.2d 696

Gottlieb ISZLER and Christina Iszler, Respondents, v. Peter JORDA and Irene Jorda, Appellants.

No. 7530.

Supreme Court of North Dakota.

Jan. 29, 1957.

Syllabus by the Court

1. Civil Damage Act (Section 5-0121, NDRC 1943) is remedial in character and should be construed to suppress the evil and advance the remedy.

2. Under the Civil Damage Act, death of an unmarried minor child, as a result of intoxication caused by the use of alcoholic beverages sold or given away in violation of law, gives rise to a cause of action in favor of surviving parents who are injured in person, property or means of support by such death, against the person or persons who illegally sold or gave the alcoholic beverages to the deceased.

3. Where the evidence established that prior to his death, a deceased unmarried minor child had been performing valuable services for his parents, the termination of the parents' right to such services, by the death of such minor, was an injury to property within the meaning of the Civil Damage Act.

4. Payment of the funeral expenses of a deceased minor child by his parents was an injury to property within the meaning of the Civil Damage Act.

5. Under Civil Damage Act the only condition necessary for an award of exemplary damages is that a right to compensatory damages be established.

6. Under the Civil Damage Act compensatory damages may be allowed only for injuries to person, property or means of support.

7. Where from a consideration of the verdict of the jury, and the evidence in the case it is apparent that the verdict included only elements of damages established by the evidence and allowable by statute, and that the verdict does substantial justice, an instruction which permitted the jury to consider other elements of damage, though erroneous, was not prejudicial.

J. K. Murray, Bismarck, for appellants.

R. J. Bloedau, Mott, for respondents.

BURKE, Judge.

In this action plaintiffs sought the recovery of damages pursuant to the Civil Damage Act, Section 5-0121, NDRC 1943. In their complaint they alleged that the defendants illegally sold intoxicating liquor to their minor son, William; that as a result of drinking said liquor William became intoxicated and that while so intoxicated and as a result thereof he lost control of an automobile which he was driving, crashed into a bridge railing and died as a result of the injuries he received in the crash. Damages were demanded for loss of the services of the minor son, loss of his comfort and society, for funeral expenses and for worry, mental strain and other suffering. Exemplary damages were also demanded. The defendants denied generally all of the allegations of the complaint except the allegation that the defendant, Peter Jorda, was engaged in the business of selling intoxicating liquor. The action was tried to a jury and a verdict for $2,450 compensatory damages and $450 exemplary damages was awarded. After the entry of judgment on the verdict and within the time allowed by statute defendants moved for judgment notwithstanding the verdict. Later they made a separate motion for a new trial. Both motions were denied and defendants have appealed the orders denying the motions.

The motion for judgment notwithstanding the verdict was made upon two grounds:

'1. That the statute upon which the plaintiffs base their cause of action limits the liability of the seller of liquor to cases where the person to whom the liquor is sold commits a tort on a third person;' and

'2. That said statute, so far as applicable to the case at bar, only awards a plaintiff for loss of 'means of support'. There is no evidence in the record that the deceased, the purchaser of liquor ever supported the plaintiffs, or either one of them, nor did plaintiffs suffer loss of 'means of support' by reason of the death of the son.'

These contentions require a construction of Section 5-0121, NDRC 1943, which reads as follows:

'Every wife, child, parent, guardian, employer, or other person who shall be injured in person, property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, or any person, shall have a right of action, in his or her own name, against any person who, by selling, bartering, or giving away alcoholic beverages contrary to the provisions of this title, shall have caused the intoxication of such person, for all damages actually sustained as well as for exemplary damages. All damages recovered by a minor under this section shall be paid either to such minor, or his or her parent, guardian, or next friend, as the court shall direct. All suits for damages under this section shall be by civil action in any of the courts of this state having jurisdiction thereof.'

We see no merit in appellants' contention that this statute applies only in cases where the person to whom the liquor is sold commits a tort upon a third person. The statute authorizes an award of damages not only for certain injuries by an intoxicated person but also for injuries in consequence of the intoxication of any person. The liability created by the Civil Damage Act has no relation to any common law liability, or to any theory of tort. Hitson v. Dwyer, 61 Cal.App.2d 803, 143 P.2d 952; Hyba v. C. A. Horneman, Inc., 302 Ill.App. 143, 23 N.E.2d 564. It was the intention of the legislature to create liability in a class of cases where there was no liability under the common law. Thompson v. Wogan, 309 Ill.App. 413, 33 N.E.2d 151. The act is remedial in character and should be construed to suppress the mischief and advance the remedy. Hahn v. City of Ortonville, 238 Minn. 428, 57 N.W.2d 254; Lester v. Bugni, 316 Ill.App. 19, 44 N.E.2d 68. It clearly gives a cause of action to every person who is injured in person, property or means of support as the result of the intoxication of any person when the intoxication was caused by the use of alcoholic beverages sold or given away in violation of law. Under such statutes death as a result of intoxication in the stated circumstances gives rise to a cause of action in favor of surviving spouses, parents and children of the deceased person. 48 C.J.S., Intoxicating Liquors, Sec. 452, p. 726; 33 C.J. (Intoxicating Liquors, Sec. 317) 645. 30 Am.Jur. (Intoxicating Liquors, Sec. 615) 577. Annotation, Damages for Death by Intoxication, Ann.Cas.1917B, 530.

Appellant's second contention upon the motion for judgment notwithstanding the verdict is that the evidence does not establish that plaintiffs were injured in person, property or means of support.

The uncontradicted testimony is to the effect that plaintiffs operated a farm consisting of six quarter sections or 960 acres; that the plaintiff, Gottlieb Iszler, was 52 years old and in poor health; that the deceased, William Iszler, did practically all of the farm work under his father's direction and most of the minor repair work; that for this work he received board and room and spending money; that the going wage for a full time man to do the work that William did was $125 a month and board and room; that at the time of his death William was 18 years and 10 months old, and that the plaintiff, Gottlieb Iszler paid William's funeral expense in the sum of $500.

Undoubtedly, the evidence shows an expenditure of $500 and loss of services of the deceased son and resulting injury to his parents. However, it is appellants' theory that the injuries shown are not injuries to person, property or means of support and that they therefore do not give rise to a cause of action under the statute.

It is of course apparent that no injury to person has been shown. Likewise we think it clear that the evidence shows no injury to means of support. These plaintiffs were in comfortable circumstances prior to William's death. They remained in such circumstances, afterwards. There is no evidence whatever in the record that William's death in any way affected the standard of living they had been maintaining or forced them to exercise any economies they had not theretofore exercised. They were able to and did hire a man to do some of William's work and as far as the record shows their farming operations continued upon the same scale as before. It is true, that their net income may be somewhat less but diminution of income does not of itself constitute an injury to means of support. 30 Am.Jur. (Intoxicating Liquors, Sec. 647) 592. Annotation, Am.Rep. 359.

There remains the question of whether the injuries suffered by the plaintiffs were damages to property within the meaning of the statute. Appellants construe the word property as used in the statute to mean only tangible real or personal property. We think that this construction is incorrect. It appears to be contrary to the rule generally applied under similar statutes in other states and in conflict with the express provisions of other North Dakota Statutes. In 30 Am.Jur. (Intoxicating Liquors, Sec. 626) 583, it is said:

"Injuries to property' for which recovery may be had under a civil damage act are not necessarily physical * * *.'

The editorial comment in an annotation in 6 A.L.R.2d 800, states:

'And apparently a chose in action is 'property' for the purposes of the Act.'

Section 47-0101, NDRC 1943 provides:

'The ownership of a thing shall mean the right of one or more persons to possess and use it to the exclusion of others. In this code the thing of which there may be ownership is called property.'

Section 47-0108, NDRC 1943 provides:

'There may be ownership of the following:

'1. * * *

'2. * * *

'3. All obligations;

'4. Such products of labor or skill as the composition of an author, the goodwill of a business, trade-marks, signs, and of rights created or granted by statute;

'5. * * *.'

Section 14-0904, NDRC 1943 provides:

'The father and mother of a legitimate unmarried minor child are entitled equally to its custody, services, and earnings, * * *.'

Thus under our statutes...