Neu v. McKechnie

Danforth, J.

The act entitled “ An act to suppress intemperance, pauperism and crime ” (Chap. 646, Laws of 1873), provides in substance that certain persons, and among others, a “child,” who shall be injured in means of support by any intoxicated person, or in consequence of the intoxication of any person, shall have a right of action against any person who, “ by selling * * "x" * intoxicating liquors, caused the intoxication in whole or in part,” and may recover from such vendor all damages so sustained, and also -exemplary damages.

This action is brought under that act. The verdict of the jury establishes that the plaintiff at the time the alleged cause of action accrued was a child of the age of fifteen years, the son of Jacob and Barbara Men; that he was living with his *635 parents and dependent upon his father for support, when the latter, in a state of intoxication, produced in part by the use of lager beer, sold to him by the defendants, murdered plaintiff’s mother and then committed suicide. Upon all these questions' there was evidence proper for submission to the jury, and their finding in regard to them has not been disturbed by the General Term. Their conclusion is not open to review here.

The learned counsel for the appellants, however, argues with much earnestness that the act which deprived the plaintiff of his father, and cut off the support which he had before enjoyed was not a natural consequence of the use of the beer sold by the defendants; that they were not bound to know that Jacob Eeu “ would strike his wife on the head with an axe, and then cut his own throat with a razor.” Perhaps not. But a cause of action may exist without such foresight. The statute does not even require that the vendor shall know that drunkenness leads to crime of any degree, nor even that it is the caiise of poverty -and beggary, and consequent distress to the drunkard’s family. It is enough that these results, come from intoxication, and so in Hill v. Berry ( 75 N. Y. 229 ) a wife recovered of the landlord and his tenant, because by reason of liquors sold by the latter her husband became intoxicated, wasted his money, neglected his employment and became incompetent to labor, and, therefore, unable to provide for her, and she obliged to care for him while in that condition. She suffered not only because his substance was reduced to nothing, but from the loss of productive labor. In Bertholf v. O'Reilly ( 74 N. Y. 509 ; 30 Am. Rep. 323 ) the landlord was required to pay for the plaintiff’s horse, because it died from over-driving induced by the driver’s intoxication through liquors sold by the defendant’s lessee. In Mead v. Stratton ( 87 N. Y. 493 ; 41 Am. Rep. 386 ) the wife recovered under this act, because the husband, while intoxicated by liquors sold on the defendant’s premises, was beaten to death by the wheel of his own wagon while the reins were in his hand, although he was in a state of stupor.

In those cases, as well as in others arising under the act, lia *636 bility was established from the sale of liquors producing intoxication, and the act of the intoxicated person causing injury to the plaintiff in his person, property or means of support. Those elements exist here. The cause of action is neither taken away nor mitigated because the cause of injury also constitutes a crime. The jury were not to inquire whether either “ the homicide or suicide were the natural, reasonable, or probable consequences of the defendants’ act.” It is enough if while intoxicated in whole or in part by liquors sold by the defendants, those acts were committed, if by reason of them, or either of them, the plaintiff’s means of support were affected to his injury.

Bor was it error in the learned trial judge to submit the case to the jury as one in which the plaintiff might have exemplary damages. They are expressly allowed by statute, and there was evidence upon which they might be awarded. The defendants were manufacturers of lager beer.' They had no license to sell it in quantities of less than five gallons. The sale to the plaintiff’s father was of that description, and hence unlawful. It was not an isolated sale. The defendants had so dealt for a long time and with many persons. It resulted in their pecuniary benefit. Under the circumstances of the case it was, therefore, for the jury to say whether something more than actual damages should not be allowed for the benefit of the community and for example’s sake. To hold otherwise would place a wrong-doer (Foote v. People, 56 N. Y. 321 ) on the same footing with a licensed vender — one who sells recklessly and at his own volition, on a level with one who has the consent of the proper public officers to deal in an article, the use of which, as the statute (supra)

implies, leads to “ intemperance, pauperism and crime.”

Other points presented by the learned counsel for the appellants have been considered, but we find no error. In this eon, elusion we agree with the General Term, and therefore their judgment should be affirmed.

All concur.

Judgment affirmed.