Pennington v. Gillaspie
| Decision Date | 11 February 1908 |
| Parties | PENNINGTON v. GILLASPIE. |
| Court | West Virginia Supreme Court |
Submitted January 22, 1908.
Rehearing Denied May 1, 1908.
Syllabus by the Court.
It is presumed that the Legislature, in re-enacting a statute that has been judicially construed, substantially in its original terms, intended it to have effect thereafter as so construed by the courts.
[Ed Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 306.]
This court having decided in the case of Pegram v. Stortz, 31 W.Va. 220, 6 S.E. 485, that, in an action by a widow against a licensed retailer of spirituous liquors, under section 16 of chapter 107, p. 144 of the Acts of 1877, no damage can be given her because of injury to her means of support by the death of her husband caused by intoxication, the consequence of liquors illegally furnished or sold to him by the defendant, and the Legislature having, since the rendition of said decision re-enacted said statute substantially in the original terms thereof, it is presumed that that body intended it to have effect and be enforced as so previously construed.
[Ed Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 306.]
The overruling of a decision as to one proposition of law declared by it, does not argue unsoundness therein as to other separate and distinct propositions enunciated thereby.
A declaration, alleging matter sufficient to constitute a cause of action, is not vitiated by the incorporation therein of immaterial matter. The immaterial allegations will be disregarded as surplusage.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 76.]
Though a declaration states a claim for damages under section 26 of chapter 32 of the Code of 1899 (Code 1906, § 938) for only one year preceding the date of commencement of the action, evidence of habitual drunkenness, on the part of the person to whom the illegal sales were made, prior to said year and continuance thereof to the time of the sales complained of, and knowledge on the part of the seller, is admissible.
Under a declaration in such case, alleging sales to have been made by the defendant, evidence of sales made by his bartender, clerk, servant, or agent is admissible.
In such action, circumstances of aggravation are admissible in evidence to increase the damages.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors,§§ 456, 457.]
If a declaration shows jurisdiction on its face, no exception to the jurisdiction of the court can be taken otherwise than by plea in abatement.
A cause of action, arising under section 26 of chapter 32 of the Code of 1899 (Code 1906, § 938) is transitory, and it need not appear that it arose in the county in which the action was brought.
Error from Circuit Court, Tucker County.
Action by Diannah J. Pennington against C. D. Gillaspie. Judgment for plaintiff, and defendant brings error. Reversed, and new trial ordered.
Cunningham & Stallings, George P. Shirley, and Malcolm Jackson, for plaintiff in error.
J. P. Scott and J. Wm. Harman, for defendant in error.
POFFENBARGER, P.
Assigning as grounds of error the overruling of a demurrer to the declaration, a motion to set aside the verdict, motions to exclude evidence, objections to the introduction of evidence, the giving of certain instructions and refusal to give others, C. D. Gillaspie, a saloon keeper, complains of a judgment for $5,500 rendered against him and in favor of Diannah J. Pennington, by the circuit court of Tucker county, in an action brought under the civil damage statute (section 20 of chapter 32, Code 1899, section 26 of chapter 32, as amended and re-enacted by the Acts of 1905, pp. 362, 364, c. 36, and sections 932, 938, Code 1906).
The plaintiff is the widow of A. J. Pennington who, it is alleged, was killed on a logging railroad, while in a state of intoxication, induced by the use of liquors sold to him by the defendant; and the second count of the declaration demands damages for injury to plaintiff's means of support, occasioned by the death of her husband, in the following terms: "The said A. J. Pennington became and was greatly intoxicated, and while so intoxicated, the said A. J. Pennington wandered along and over the log railway leading from the saloon of the said defendant at Brooklyn Heights to the home of the said Pennington about one-half mile distant from the said saloon, and while he, the said Pennington, was on said route, and on the night of the day last mentioned, he, the said Pennington, while so intoxicated, and in consequence of his said intoxication, was run over by a log engine on said railway, and killed, whereby the said defendant, by causing such intoxication and consequent death, injured the plaintiff in her means of support, all in consequence of the unlawful acts of the said defendant in furnishing and selling to the said A. J. Pennington intoxicating liquors aforesaid, whereby the said plaintiff's husband became and was intoxicated as aforesaid." This count contains no allegation of injury other than that resulting from the death of her husband by reason of the alleged unlawful sales made to him. Under it, evidence tending to prove death, resulting from unlawful sales, was admitted, and instructions given by the court over the objection of the defendant, telling the jury, in substance, that they might include in their verdict damages for the loss of the support of her husband for such time as he would probably have lived; and the amount included for such damages admittedly constitutes by far the greater part of the damages assessed. The alleged right to such damages, therefore, constitutes the principal matter of controversy, and the determination thereof will govern the disposition of many of the numerous assignments of error.
The rulings of the court, respecting injury to the plaintiff's means of support by the death of her husband were directly contrary to principles declared by this court in Pegram v. Stortz, 31 W.Va. 220, 6 S.E. 485. Denying the soundness and binding force of that decision, the trial court ignored it. In that case, similar in all material respects to this, and governed by the same statute, this court held as follows in point 3 of the syllabus: "In such a case, no damage can be given because of injury to her means of support by the death of her husband caused by his intoxication, the consequence of liquors illegally furnished or sold to him by the defendant." In the opinion, the court said it was obvious, from the amount of the recovery, viewed in the light of the evidence, that the verdict must have either included damage to the plaintiff's means of support by reason of the drowning of her husband, or what are called exemplary damages; and proceeded upon the inquiry as to whether either of these two matters constituted an element of damages recoverable under the statute, and returned a negative answer to both propositions. As to the latter, the decision has since been overruled in two cases-Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58; McMaster v. Dyer, 44 W.Va. 644, 29 S.E. 1016-but as to the first, namely, that recovery cannot be had for injury to means of support by reason of the death of the party to whom illegal sales have been made, it has not been overruled or in any way questioned by any subsequent decision. That the decision has been overruled as to one of the points decided argues nothing against its soundness in respect to other propositions enunciated by it. On this question, the court reviewed the earlier cases decided by the New York, Illinois, Iowa, and Nebraska courts, holding the seller liable for injury occasioned by the death of the purchaser, on the one hand, and the Massachusetts and Ohio cases, holding the contrary, on the other hand, and adopted the reasoning of the latter, as being better sustained by legal principles than the others. At that time, the court was composed of Judges Green, Johnson, Snyder, and Woods, all very able and learned men, and the opinion was written by Judge Green, then at the zenith of his mental power and judicial career. The opinion is an able and carefully prepared one, and has since been acquiesced in by the legal profession and the people. The statute has been twice re-enacted by the Legislature, since the rendition thereof, without any change as to the basis of liability (Acts 1904, p. 6, c. 3; Acts 1905, p. 350, c. 36), and the judicial construction given it by the decision in Pegram v. Stortz thereby presumptively, at least, adopted by the Legislature. Brown v. Randolph County, 45 W.Va. 827, 32 S.E. 165; Daniel v. Simms, 49 W.Va. 554, 39 S.E. 690 (Syl. point 9); State v. Cornell, 54 Neb. 647, 75 N.W. 25; Barrett's Appeal, 73 Conn. 288, 47 A. 243; Frink v. Pond, 46 N.H. 125; Fitzpatrick v. Chicago, etc., Co., 139 Ill. 248, 28 N.E. 837; Sessions v. Romadka, 145 U.S. 29, 12 S.Ct. 799, 36 L.Ed. 609; Mangus v. McClelland, 93 Va. 786, 22 S.E. 364; Swift & Co. v. Wood, 103 Va. 494, 49 S.E. 643. In some of these decisions, it has been declared that the re-enactment of a statute which has received a judicial construction is an adoption of that construction by the Legislature, a manifestation of legislative intent that the statute shall thereafter have effect as so construed and not otherwise, and that the courts cannot thereafter give it a different construction. It suffices the purposes of this case to say it is well settled, as a rule of construction, that there is a presumption of intent, on the part of the Legislature, to adopt the judicial construction, and this rule extends not only to statutes construed by the courts of the states in which they were enacted, but also to statutes of one state adopted by the Legislature of...
To continue reading
Request your trial