Palmer v. Schurz

• Decision Date: 24 June 1908
• Citation: 22 S.D. 283,117 N.W. 150
• Parties: PALMER v. SCHURZ et al.
• Court: New York Supreme Court

22 S.D. 283

117 N.W. 150

PALMER

v.SCHURZ et al.

Supreme Court, of South Dakota.

June 24, 1908.

Appeal from Circuit Court, Davison County.

Action by Carrie E. Palmer against Conrad Schurz and another. From a judgment for plaintiff, defendants appeal. Affirmed.T. J. Spangler and Joe Kirby, for appellants.

E. E. Wagner, for respondent.

CORSON, J.

This is an action by the plaintiff as widow of Henry C. Palmer, deceased, on a bond executed by the defendant Conrad Schurz, as principal, and the Western Surety Company, as surety, to recover on behalf of herself and minor children damages for the loss of support caused by the death of her said husband. The action was tried to a jury, and verdict and judgment being in favor of the plaintiff, the defendants have appealed.

It is alleged in the complaint, in substance, that the plaintiff is the widow of said Henry C. Palmer, deceased; that she and her said husband, Henry C. Palmer, were married in 1894, and resided in this state as husband and wife until July 17, 1905, when her said husband committed suicide; that there were born to the plaintiff and her said husband six children, the oldest of which was 12 years of age; that all of said children resided and made their home with the plaintiff and her husband until the latter's death, and that at all the time after the marriage of plaintiff her husband provided her and her children with the necessaries of life and support, and was their only means of support prior to his death; that by his death they were deprived of their means of support, and that the support of each and all of said children since the death of her said husband has devolved upon her; that on the 17th day of July, 1905, and prior thereto, the said defendant Conrad Schurz was a licensed retail liquor dealer carrying on said business in Davison county in this state; that for the purpose of such business on or about the 23d day of June, 1905, he, as principal, and the defendant Western Surety Company, as surety, executed and delivered to the state of South Dakota a licensed liquor dealer's bond as required by statute, a copy of which is annexed and made a part thereof; that the fifth and sixth paragraphs of the complaint are as follows: “That on and prior to the 15th day of July last, the said Henry C. Palmer was addicted to the use of intoxicating liquors and in the habit of getting intoxicated, and during such time and on such date, or thereabouts, was intoxicated, and while so intoxicated, and in the habit of getting intoxicated, the defendant Conrad Schurz, directly and indirectly, by himself, his clerks, agents and servants, did sell, furnish, give and deliver to the said Henry C. Palmer, spirituous and intoxicating liquors to be used by the said Palmer as a beverage, and the same were so used by him in the place of business of the said Conrad Schurz at Ethan and elsewhere, and by reason of the use of such liquors the said Palmer became intoxicated, and continued in a state of intoxication up to the time of his death, and his mind gave way and he became impaired and despondent, and did, on the 17th of said month, while in such condition, induced and caused by the use of such intoxicating liquors, so sold and delivered to him by the said Schurz, take his own life; that by reason of the death of said Palmer the plaintiff and her said minor children have been left without means of support other than that obtained by the personal exertions of the plaintiff, and by reason of the facts hereinbefore set forth the plaintiff has been damaged in the sum of $2,000.00, no part of which has been paid and all of which is now due. Wherefore, the plaintiff demands judgment against the said defendants jointly and severally for the sum of two thousand dollars ($2,000.00), together with the costs and disbursements of this action.”

Upon the case being called for trial the defendants objected to the admission of any evidence under the complaint, for the reason that it does not state a cause of action, in that it is not alleged in the complaint that the defendant Schurz or his agents, servants, or employés sold to said Henry C. Palmer intoxicating liquors when he was intoxicated on or about the time the act complained of was committed; that it is nowhere alleged in said complaint that said Palmer was under the influence of liquor at the time he committed suicide; that the said chapter of the Code under which this action is brought is unconstitutional, in that it does not contain any title and the act itself contains more than one subject; that the bond set forth upon which the action is based is not such a bond as is contemplated by the statute or that the same was approved by the county commissioners or filed with the county auditor, and that it does not appear from said complaint that the defendants were ever forbidden in writing to sell liquor to the said Henry C. Palmer or that the defendant was ever notified in writing that said Palmer was in the habit of getting intoxicated. These objections were overruled by the court, and its ruling in our opinion was correct.

The first objection is not tenable, for the reason that it is alleged in the complaint that the defendant Schurz sold said Palmer liquor on July 15th and during the week prior thereto when he was intoxicated, and that “he continued in a state of intoxication up to the time of his death,” and that he committed suicide on July 17th.

The second objection is untenable for the reason that section 2849, Rev. Pol. Code, under which this action was instituted, provides: “On the trial of any suit under the provisions of this article, the cause and foundation whereof shall be the acts done or injuries inflicted by a person under the influence of liquor it shall only be necessary to sustain the action, to prove that the defendant, or defendants, sold or gave away the liquors to the person so intoxicated or under the influence of liquor, whose acts or injuries are complained of, on that day or about that time when said acts were committed, or said injuries were received.”

It will be noticed that it is alleged in the complaint that the sale of intoxicating liquor to said Palmer was made to him on the 15th day of July, and that he continued to be intoxicated up to the time of his death. This allegation in our opinion brings the case within the time specified in the statute as “on that day or about that time when said acts were committed or said injuries were received.” Kerkow v. Bauer, 15 Neb. 150, 18 N. W. 27.

The contention of appellant that the complaint failed to allege that the defendant Schurz was notified not to sell liquor to the husband of the...