Struble v. Nodwift
| Decision Date | 22 November 1858 |
| Citation | 11 Ind. 53 |
| Parties | Struble v. Nodwift |
| Court | Indiana Supreme Court |
From the Warren Court of Common Pleas.
The judgment is reversed with costs. Cause remanded.
R Chandler, for appellant.
B. F Gregory, J. Harper and J. R. M. Bryant, for appellee.
Civil action. Complaint as follows:
George H. Nodwift complains of Peter Struble, and says, that on the twenty-fifth day of December, A. D., 1855, the said Peter Struble did, by the unlawful sale of spirituous liquor at the said county, cause the intoxication of Jacob Nodwift, a minor, within the age of twenty-one years, and a son of the said plaintiff, and in his employment, whereby, and by reason whereof, the said plaintiff was deprived of the services of the said Jacob Nodwift for a long space of time, to-wit, the space of twenty-four hours, to the great damage of the said plaintiff--500 dollars--and the said plaintiff demands judgment for that sum."
The complaint was demurred to as not containing a cause of action; the demurrer was overruled, and exception taken.
Answer in denial. Trial, and judgment for the plaintiff for 20 dollars and costs.
It is doubtful whether this action was intended to be based upon the liquor law of 1853, or upon the general principles of the common law. Counsel, in their brief, argue it upon both grounds, without saying upon which they originally intended to rely.
We will examine, therefore, whether the complaint is sufficient upon either.
1. Upon the statute. It is a general principle governing actions upon statutes, that the complaint must aver every fact necessary to bring the case within the statute sued upon. There are other sections of the act of 1853, upon either of which counsel may claim an action might be rested, viz., the first, which prohibits any unlicensed person from retailing spirituous liquor, except for medicinal, &c., purposes; the seventh, which renders any person causing the intoxication of another, by the sale to him of liquor, liable to an action, where he refuses to take care of such intoxicated person till he is able to go home; and the tenth, which authorizes any wife, &c., to sue for damages occasioned, &c., by intoxication, &c.
The complaint, in this case, is bad upon the first section, if an action could, in any case, be sustained upon it (it containing no express authority for such suit and enacting no penalty), for this reason, if for no other, that it is not alleged that the liquor was not sold for medicinal, &c., purposes. The exception in the statute is not negatived, and there is no allegation that the sale was made for the purpose of causing intoxication, or with a knowledge, even, that it was purchased to be drank by the purchaser.
The complaint is bad...
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