Strong v. Schaffer

• Citation: 39 S.D. 250,163 N.W. 1035
• Decision Date: 07 August 1917
• Docket Number: No. 4026.,4026.
• Parties: STRONG v. SCHAFFER et al.
• Court: Supreme Court of South Dakota

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

STRONG
v.
SCHAFFER et al.

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.

WHITING, J.

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...