Riden v. Gremm

• Decision Date: 19 September 1896
• Citation: 36 S.W. 1097
• Parties: RIDEN v. GREMM et al.
• Court: Tennessee Supreme Court

36 S.W. 1097

RIDEN v. GREMM et al.

Supreme Court of Tennessee.

September 19, 1896.

Appeal from circuit court, Hamilton county; John A. Moon, Judge.

Action by Mary L. Riden against Gremm Bros. Judgment for defendants. Plaintiff appeals. Reversed.

Case & Case, for appellant. H. M. Wiltse, for appellees.

WILKES, J.

This is a suit for damages sustained by the plaintiff in the death of her husband. Defendants demurred to the declaration filed, which was sustained, and the suit dismissed, and plaintiff has appealed and assigned errors.

The declaration alleges that defendants were saloon keepers and retail dealers in liquors in Chattanooga; that her husband, W. H. Riden, had become an habitual drunkard, and this fact was well known to defendants; that on the 29th of May, 1894, the defendants were duly and lawfully served with written notice not to sell W. H. Riden anything to drink in their saloon, and were forbidden by her to do so; that, in violation of said notice, the defendants, in May, June, and July, 1894, in Chattanooga, sold, gave, furnished, and procured for her husband large quantities of intoxicating liquors, in violation of the prohibition and of the statute relating thereto, to the injury of her husband, and from the effects of which he sickened, was paralyzed, and died, August 11, 1894, and she was deprived of the support, society, and maintenance of her husband, to her damage $20,000. The demurrer states several grounds of insufficiency, which may be summarized as follows. That no cause of action is stated; that the suit is not brought for the statutory penalty, and that no right of action exists for such penalty except in the state; that there is no common-law liability that the declaration does not show a compliance with the statute in the notice by the wife; and that it does not allege a return of the notice indorsed by the sheriff, as the law prescribes.

The law under which the suit is brought is the act of March 16, 1889, entitled "An act to prevent the selling, giving, furnishing to, or procuring for, any husband who is an habitual drunkard, of any intoxicating liquors," and reads thus:

"Section 1. Be it enacted by the general assembly of the state of Tennessee, that it shall be unlawful for any person engaged regularly, or otherwise, in the manufacture or sale of any spirituous, vinous, malt, or mixed liquors, their employés, agents, or servants, or any person for them, to sell, give, furnish to, or procure for any husband who is an habitual drunkard, any intoxicating liquors after having been served with a written prohibitory notice thereof, signed by the wife of said husband.

"Sec. 2. Be it further enacted, that said notice shall be served, and a due return thereof made to the clerk of the county court by the sheriff, or any constable of the county wherein such person is engaged in the manufacture or sale of said liquors.

"Sec. 3. Be it further enacted, that any person or persons violating the provisions of the first section of this act shall be guilty of a misdemeanor, and upon conviction shall be fined not less than ten,...