Swanson v. Ball
| Decision Date | 05 March 1940 |
| Docket Number | 8314. |
| Citation | 290 N.W. 482,67 S.D. 161 |
| Parties | SWANSON v. BALL et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.
Action by Augusta C. Swanson against Amiel W. Ball, Fred J. Ball and another to recover damages suffered because of named defendants' sales of intoxicating liquors to plaintiff's husband. From an order overruling named defendants' demurrer to the complaint, they appeal.
Affirmed.
Bailey Voorhees, Woods & Bottum and J. B. Shultz, all of Sioux Falls, for appellants.
John C Mundt and Cherry & Braithwaite, all of Sioux Falls, for respondent.
An action was commenced by the service of a summons and complaint by Augusta C. Swanson upon the above named defendants. Amiel W. Ball and Fred J. Ball demurred to plaintiff's complaint on the ground that it does not state facts sufficient to constitute a cause of action. The Western Surety Company, a corporation, defendant, demurred separately. It appealed from an order overruling the demurrer of the lower court and is here on appeal. See 291 N.W. 577.
The complaint alleges that the defendants Amiel W. Ball and Fred J. Ball were licensed and bonded liquor dealers; that they knew the effects of alcohol and without a doctor's prescription sold and continued to sell liquor to the plaintiff's husband Anton H. Swanson in spite of protest warnings and a certain written notice directed to the Paramount Bar in Sioux Falls, South Dakota, and these two defendant licensees and their agents and employees requesting that no intoxicating liquor be sold to the said Anton Swanson. Due and legal service of the notice was admitted by Fred J. Ball, licensee, one of the operators of said Paramount Bar. The complaint charges that sales of liquor were unlawful, wilful and malicious and that the fact that the defendants continued to sell liquor to the plaintiff's husband resulted in his death; that by reason thereof plaintiff was required to furnish the husband money, nurse and care for him during frequent spells of illness, incurred hospital and doctor bills; that because of the loss of his aid, support, affection, society, companionship and consortium during the whole of said period she suffered financial loss by reason of money furnished him and great and grievous mental anguish, physical agony and shame.
The trial court overruled the defendants' demurrer. This appeal is prosecuted from the ruling.
Respondent who had the laboring oar in the lower court in maintaining her cause of action has directed the court's attention to the fact that the conduct of the defendants was in violation of § 31, Ch. 134, Laws of 1935 [SDC 5.0226(2)]. From a perusal of the statute in order to determine the sufficiency of the complaint attacked by the demurrer it would seem that the allegations of the complaint places it well within the requirements of the statute. We now enquire must there be, in order to recover, a statute or legislative act in the form of a civil remedy specifically covering the wrong which plaintiff has charged in the complaint and for which she now asks the defendants to respond in damages?
Respondent in support of her complaint cites Moberg v. Scott, 38 S.D. 422, 161 N.W. 998, L.R.A. 1917D, 732; Id., 42 S.D. 372, 175 N.W. 559, and calls the court's attention to the fact that the statutes of this state in force at the time of said decisions are still in force, each one of them having been reenacted by the legislature, and are now in full force and effect.
Respondent cites Art. 6, § 20 of our constitution and the following 1919 Rev.Code sections, 55; 1959; 1960; 4; 93 and 178 as having been interpreted in the case of Moberg v. Scott, supra, construing a complaint similar to the instant case with the exception that that case was one for the recovery of damages for furnishing opium, a habit forming drug, while this is one concerning furnishing of intoxicating liquor.
In Holmstrom v. Wall et al., 64 S.D. 467, 268 N.W. 423 424, this Court dealt with a wilful alienation of the affections of the husband of another by a female and for wilful injury to the...
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