Kennedy v. Garrigan

• Citation: 121 N.W. 783,23 S.D. 265
• Parties: KENNEDY et al. v. GARRIGAN.
• Decision Date: 21 May 1909
• Court: Supreme Court of South Dakota

121 N.W. 783

23 S.D. 265

KENNEDY et al. v. GARRIGAN.

Supreme Court of South Dakota

May 21, 1909

Appeal from Circuit Court, Minnehaha County.

Action by Samuel Kennedy and another against Mary Garrigan and another. From an order overruling a demurrer to the complaint, the defendant named appeals. Reversed and remanded, with directions to sustain demurrer and dismiss the complaint.

Joe Kirby, for appellant.

Robertson & Dougherty, Rodge & Winans, and A. B. Kittredge, for respondents.

SMITH J.

This is an appeal from an order overruling a demurrer to the plaintiffs' complaint. The complaint alleges, in substance, that the plaintiff Kennedy and also one Thompson and one Huntemer, were severally engaged in the business of selling intoxicating liquors at retail under separate and distinct licenses, and had separate and distinct places of business in the town of Dell Rapids, in this state; that about June 10, 1901, the defendant Mary Garrigan began three separate and distinct actions against the above-named saloon keepers and their respective bondsmen to recover damages to her means of support by reason of the death of her husband resulting from the sale of intoxicating liquors to him by all of said saloon keepers. That in said actions this defendant Mary Garrigan sought to recover the full sum of $2,000 damages against each of said saloon keepers and their bondsmen; that such proceedings were thereafter had that the defendant Mary Garrigan recovered a judgment against this plaintiff Kennedy and his bondsmen for the sum of $1,500 and costs, and recovered a judgment against Thompson and his bondsmen for the sum of $2,000 and costs; both of which judgments were affirmed on appeal by the Supreme Court; that the action against Huntemer was abated; that the sales to the deceased husband by the three saloon keepers named covered the same period of time, and that deceased drank in each of said saloons, and was kept in practically a state of continuous intoxication from July 1, 1900, to April 1, 1901 and that his death then resulted from the effects of such combined sales of intoxicating liquors. The complaint further alleges that the said judgment for $2,000 and costs against the said Thompson has been fully paid and satisfied, and that the defendant Mary Garrigan has now taken out an execution on the said judgment for $1,500 and costs against this plaintiff Kennedy, and has caused the same to be levied upon his property and the same is about to be sold to satisfy said judgment; that thereby this defendant is seeking to obtain a second satisfaction for the same joint tort or wrong; that plaintiffs have no plain, speedy, and adequate remedy at law, and the plaintiffs therefore pray a perpetual injunction against the enforcement and a cancellation of said judgment. A demurrer to the complaint on the ground that it does not state a cause of action was overruled, and defendant appeals.

The question presented is whether sales of intoxicating liquors by the three saloon keepers named to the deceased husband the combined effects of which caused his death constituted a joint tort. If so, the satisfaction of the judgment against one of the three joint tort-feasors would discharge the others. Respondent has filed no brief on this appeal, but we know of no other theory of the law than that indicated on which this action could be brought. The direct question here presented is before this court for the first time under the laws of this state relating to the sale of intoxicating liquors....