Spencer v. Fisher

• Decision Date: 21 December 1912
• Citation: 76 S.E. 731,161 N.C. 116
• Parties: SPENCER v. FISHER.
• Court: North Carolina Supreme Court

76 S.E. 731

161 N.C. 116

SPENCER v. FISHER.

Supreme Court of North Carolina

December 21, 1912

Appeal from Superior Court, Craven County; Whedbee, Judge.

Action by Laura Spencer against John H. Fisher. From a judgment for defendant, plaintiff appeals. Affirmed.

W. D McIver, of New Bern, for appellant.

WALKER J.

This action was brought by the plaintiff to recover damages of the defendant for unlawfully selling liquor to her son, Carl Spencer, in violation of Revisal, § 3525. The court sustained a demurrer to the complaint, and plaintiff appealed.

In order to understand the nature of the cause of action given by that statute, we will have to read and consider it in connection with the next preceding section.

"Sec 3524. If any dealer in intoxicating drinks or liquors sell or in any manner part with for a compensation therefor, either directly or indirectly, or give away such drinks or liquors, to any unmarried person under the age of twenty-one years, knowing the said person to be under the age of twenty-one years, he shall be guilty of a misdemeanor; and such sale or giving away shall be prima facie evidence of such knowledge. Any person who keeps on hand intoxicating drinks or liquors for the purpose of sale or profit shall be considered a dealer within the meaning of this section.

"Sec. 3525. The father, or if he be dead, the mother, guardian or employer of any minor to whom a sale or gift shall be made in violation of the preceding section, shall have a right of action in a civil suit against the person or persons so offending by such sale or gift, and upon proof of such illegal sale or gift shall recover from such party or parties so offending such exemplary damages as a jury may assess: Provided, that such assessment shall not be less than twenty-five dollars."

There was no action at common law of this kind. It is entirely statutory, and hence must be governed wholly by the provisions of the statute. Black on Intoxicating Liquors (1892) 281. The statutes which are now familiarly known as "civil damage laws" are intended to impose a civil responsibility upon liquor dealers for some of the evils which their traffic engenders. These laws give a right of action against such persons to innocent parties who sustain injury by the intoxication of persons supplied with liquor by the defendants, or by the consequences of such intoxication, or by the acts of intoxicated persons, or by the furnishing of liquor to minors or drunkards, with knowledge of the minority or intemperate habits, after warning given not to do so.

The civil damage law should receive a strict construction, being highly penal in its character, and introducing remedies unknown to the common law, and the statutes being framed in some jurisdictions so as to give to the party prosecuting a decided advantage over the party defending. Hence, for example, no person can maintain an action under its provisions to whom a right of action is not given by its terms. But, on the other hand, while a statute of this character should not be enlarged, it should be interpreted, where the language is clear and explicit, according to its true intent and meaning, having in view the evil to be remedied and the object to be attained. The evident object was to suppress the sale and use of intoxicating liquors, and to punish those who, in any form, furnished means of intoxication by making them liable for damages which might arise, and which were caused by the parties who furnished such means. It would be a gross failure of justice to put so narrow a construction upon these acts as to impair the effects they were intended to produce. Their beneficent purpose is not to be defeated by technical or verbal niceties. Under the civil damage laws of the more usual type, any person may maintain an action for injuries of a certain character suffered by or inflicted upon him, through the intoxication of a third person, or by the acts of such person while drunk, when the intoxication was caused, entirely or in part, by liquor furnished by the defendant.

But, as the action is statutory, all the statutory requisites must be present before the suit can be sustained. Thus there must be a "sale," "gift," or "furnishing" of liquor according to the terms of the act. Black, Int. Liquors, §§ 277, 279, and 304, and 23 Cyc. p. 309 et seq. The effect of statutes of this kind is to create a new cause of action in tort, and it is purely an action ex delicto, and not only that, but it is for a personal tort and injury, as much so as in the case of an assault and battery. Black, § 281. It is said in 23 Cyc. p 309, that: "Civil damage laws create a new right of action, unknown to the common law. A proceeding thereunder is not a criminal prosecution or an action for the recovery of a fine or penalty. It is simply an action of tort founded on the statute. And, where the common-law system of pleading is in force, 'ca...