Strong v. Schaffer, 4026.

CourtSupreme Court of South Dakota
Writing for the CourtWHITING
Citation39 S.D. 250,163 N.W. 1035
PartiesSTRONG v. SCHAFFER et al.
Docket NumberNo. 4026.,4026.
Decision Date07 August 1917

39 S.D. 250
163 N.W. 1035


No. 4026.

Supreme Court of South Dakota.

Aug. 7, 1917.

Appeal from Circuit Court, Brown County; Raymond L. Dillman, Acting Judge.

Action by Maude Strong against Sebastian Schaffer and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed.

McCoy and Polley, JJ., dissenting.

[163 N.W. 1035]

Geo. H. Fletcher and W. A. Hazle, both of Aberdeen, for appellants.

Amos. N. Goodman and Thomas L. Arnold, both of Aberdeen, for respondent.


Defendants Schaffer Bros. were saloon keepers. As such they gave bonds under the provisions of section 2839, P. C. The other defendant, a surety company, was the surety on such bonds from July 1, 1913, until after the commencement of this action, which was in May, 1915. Plaintiff sought to recover on such bonds damages which she claimed to have suffered through the sale of intoxicating liquors to her husband, Leon Strong, by Schaffer Bros. In trial court there were verdict and judgment for plaintiff. From such judgment, and an order denying a new trial, all the defendants appealed.

[1] Appellants question the sufficiency of the complaint. This question was raised in the trial court by objections to introduction of evidence. If it had been raised before trial, the trial court might properly have required the complaint to have been amended; but the complaint was not so lacking in substance as to justify the trial court in sustaining the objection to introduction of evidence. Anderson Lumber Co. v. Spears, 25 S. D. 624, 127 N. W. 643.

[2] Respondent alleged that her husband was in the habit of getting intoxicated; that repeatedly, and on divers days and dates from July 1, 1913, until the commencement of this action, the Schaffers had sold him intoxicating liquors; that by reason of the above she had been and was deprived of the support and maintenance for herself and children to which she was justly and legally entitled from her husband. By the instructions of the trial court we are relieved from any necessity of discussing what respondent had to prove to establish her cause of action. Such court limited respondent's right of recovery to “damages, if any, suffered by the plaintiff occasioned to her means of support for herself and children.” Respondent is correct in saying:

“The question is: Did he support his family? If not did the sale of liquor by the defendants enter into his reason for not doing so, and to what extent?”

There was no evidence to show that Strong was ever in the Schaffer saloon prior to September, 1913. The evidence is undisputed that he became addicted to the use of intoxicating liquors in 1912; that in September, 1913, he was capable of and was earning 35 cents an hour, and continued capable of and did earn this amount up to the time this action was brought; that he had quit giving his family any material assistance before September,

[163 N.W. 1036]

1913; that he was drunk a good share of the time after September, 1913, and bought a part, at least, of his liquor in the Schaffer saloon. The jury, if it were not for the evidence to the contrary, might have presumed that Strong was, through his drunkenness, rendered less capable of earning money than he was on September 1, 1913. The jury may have found that, owing to such drunkenness, he actually lost time from his work, though there was no direct evidence that he ever lost an hour's time from his work on account of such drunkenness. Inasmuch as it is usual and natural for the husband and father to, and in fact is his legal duty to, provide for his family, and inasmuch as there was evidence showing that, before he became addicted to the use of intoxicants, he did provide for his family, the jury were undoubtedly warranted in finding that, if he could not have got intoxicating liquors, he would have used his earnings for the benefit of his family. Therefore, though we believe it should have been possible for respondent to have furnished better evidence of some of the necessary elements of her cause of action, we would hardly feel justified in reversing the judgment upon the ground, as urged by appellants, that the verdict was unsupported by the evidence.

[3] Appellants contend that certain evidence was improperly received. Conceding that there was evidence properly received, which furnished answers, favorable to respondent, to the questions, “Did he support his family?” and “Did the sale of liquor by the defendants enter into his reason for not doing so ***?” we need still inquire whether there was error in the receipt of certain evidence which we must presume the jury considered in determining “to what extent” respondent was damaged. The greatest possible earning capacity upon which respondent's claim for damages could be based would be Strong's earning capacity in September, 1913, if he had not then been addicted to the use of intoxicating liquors. There was no competent evidence that such earning capacity exceeded $90 per month-35 cents per hour. There was received, over appellants' objections, evidence in relation to his earning capacity during a period from November, 1910, to August, 1912. This evidence related to his earning capacity as an employé of a railway company, and showed that, until discharged for drunkenness, he earned from $125 to $135 per month. There seem to be two theories finding support in the decisions of the courts. In Michigan it has been held, in a case such as the one now before us, that the plaintiff could not base her damages on the earning capacity of her husband as a sober man. The court says that the wife cannot claim damage for “the loss of a sober husband when she has only a drunken one.” Friend v. Dunks, 39 Mich. 733. Therefore it was held that the jury should consider that, before the defendant made the sales, the plaintiff's husband was already an habitual drunkard.

The second theory seems to be that, although the plaintiff's husband may have been an habitual drunkard previous to the wrong complained of, yet, unless somebody furnished him liquor after that time, he would cease to be a drunkard; that, if defendant furnished him liquor, he was guilty of continuing such habit; that the defendant cannot show, as a matter of defense, that the husband was a drunkard prior to the sales; and that the plaintiff is entitled to recover from such defendant to the extent to which his sales caused the injury complained of. League v. Ehmke, 120 Iowa, 464, 94 N. W. 938. If the husband is an habitual drunkard, the sale to him is unlawful. If he is not yet an habitual drunkard, while the sale is lawful, yet the sales assist in rendering him incompetent to, or else unwilling to, properly supply his family. Under this theory plaintiff's recovery is based upon the earning capacity of the husband immediately prior to the sales complained of, such earning capacity being itself based upon the mental and physical powers which the jury finds such husband would have been possessed of, if he had refrained from the use of intoxicants from that time on. It does not prevent the defense proving a diminished earning capacity resulting from permanent mental or physical weaknesses, even though such weaknesses may have been the result of former use of intoxicants. With evidence in relation to the extent of the husband's earnings just prior to the sales complained of, it cannot be presumed that, if such sales had not been made, his earning capacity would have been that possessed by him a year or more previous thereto. If so, then it would be competent to show how much the husband was capable of earning at a time perhaps when he was physically a much better man than he would have been at the time of the wrongful sales, even though he had then been free from the use of liquor. Furthermore, a person's capacity to earn may be weakened through the use of liquor, so that, even if he ceases the use of liquor entirely, he would not be able to earn what he had previously been able to earn.

[4] If evidence of his earnings of two years before would in any manner have tended to show what his earning capacity as a sober man was at the time of these sales, then such evidence was competent. But the plaintiff was not entitled to recover anything on account of the difference in her husband's earning capacity when he was working for the railroad company and what his earning capacity was, if a sober man, at the time of these sales. To illustrate: If he could earn $100 a month two years prior, but his earning capacity when sober was only $80 a month at the time of the first sale complained of, the jury would have no right to base any recovery

[163 N.W. 1037]

upon the $20 difference. The sole and only question for determination under the second theory, which is certainly the more favorable to plaintiff, is: What was plaintiff's husband's earning capacity, as a sober man, at...

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