Kennedy v. Saunders

A notice in writing, signed by the wife of a person having the habit of drinking intoxicating liquors to excess, to a seller of such liquors, as follows, “ My husband has been in the habit of getting liquor here and coming home drunk, .... I don’t want you to give him any more drink,” is a sufficient compliance with the Pub. Sts. c. 100, § 25. In an action, under the Pub. Sts. c. 100, § 25, upon a declaration containing four ¿•ounts, two of which allege the sale or delivery, at different times, of intoxicating liquors to a person having the habit of drinking such liquors to excess, within twelve months after having been notified not to make such sale or delivery, and the other two counts of which allege the permitting a loitering of such person upon the premises where the liquors are kept, at different times within said twelve months, the plaintiff may recover separate damages under each count.

Tort, Tinder the Pub. Sts. o. 100, in five counts. The first count alleged that the plaintiff was the wife of William J. Kennedy; that said William J. had the habit of drinking spirituous or intoxicating liquors to excess; that in September, 1884, the plaintiff gave notice in writing, signed by her, to the defendant, requesting him not to sell or deliver such liquor to said William J.; and that the defendant did sell or deliver such liquor to said William J. after the giving and receipt of said notice, and between the date of the receipt thereof and May 1, 1885, and within twelve months after the giving and receipt of such notice. The second count was similar to the first, except that the date of the sale or delivery was alleged to be between May 1, and August 16, 1885. The third count contained the same allegations as those in the first count; and alleged further, that, between the date of the giving of said notice and May 1, 1885, and within twelve months after the giving of such notice, the defendant permitted said William J. to loiter on the premises used by the defendant for the sale of said liquors. The fourth count was similar to the third, except that the date of permitting said loitering was alleged to be between May 1 and August 16, 1885. The fifth count alleged that, on August 15,1885, said William J. became intoxicated from drinking spirituous or intoxicating liquors sold or delivered to him by the defendant; and that, in consequence of said intoxication, the plaintiff was injured in person, property, and means of support. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows: The defendant, during the time set forth in the declaration, held a license of the first class, to sell intoxicating liquors to be drunk on the premises, and also a common victualler’s license. The plaintiff testified that, some time in September, 1884, she gave the defendant a written notice signed by her, of which she retained no copy, the contents of which, as nearly as she could remember, (though she did not pretend to state precisely the language used,) were substantially as follows: “Dear Sir, — My husband has been in the habit of getting liquor here and coming home drunk. Now if you care anything for a wife and three children, I don’t want you to give him any more drink; and if you do, I shall take means to protect myself.” She also testified that the defendant read the notice, and said, “ All right; I won’t give him any.”. The plaintiff’s husband also testified that, shortly after, the defendant told him that his wife had given him written notice not to sell him, the husband, any liquor, but that nevertheless he continued so to do. No evidence was offered of the giving of any other written notice; and the evidence was conflicting whether any such notice was ever given by the plaintiff to the defendant. The defendant asked the judge to instruct the jury as follows: “1. The written notice claimed to have been given by the plaintiff to the defendant was not a sufficient compliance with the provisions of the Pub.- Sts. c. 100, § 25, and for that reason she cannot recover under the first four counts of her declaration. 2. The plaintiff is not entitled to recover two separate sums of money for loitering within the time set forth in her declaration ; nor two separate sums for sales or deliveries within the time set forth therein.” The judge refused to give these instructions; and, upon the second point, instructed the jury that, if the evidence warranted it, they might find for the plaintiff, and assess damages for one sale within the time covered by each of the two counts respectively charging sales, and likewise for permitting loitering, on other days than those of the sales, on one occasion within the time covered by each count charging this; but that the jury could only assess damages for a single occasion under each count. The jury returned a verdict for the plaintiff, and assessed separate damages upon each count in her declaration. The defendant alleged exceptions.