2

but is to be made out by circumstances,' and it is no excuse to the defendant that he could not reasonably have foreseen the consequences. Neither is it a defense that others also sold liquors to the husband, but where several are liable there can be but one recovery for the injury. The damage sustained must be correctly described in the declaration; if the wife complains only of loss of means of support, evidence should not be received of an injury to the person of the wife. The widow may bring the action after the death of the husband caused by in[*245] toxication. The section for the recovery *of two dol

lars per day for taking charge of and providing for the intoxicated person has no application to the case of intoxication caused by liquors given to him.' The sum can only be recovered in an action of debt as prescribed in the statute; and the sum named in the statute is the limit of the recovery. In making out a case it is not required to make it out beyond a reasonable doubt, but only by a preponderance of evidence. 1o

Bell, 77 Ill. 593. The liability of the defendant to indictment for the same act is no bar to exemplary damages. Brannon v. Silvernail, 81 Ill. 434.

1 Horn v. Smith, 77 Ill. 381; Roth v. Eppy, 80 Ill. 283. As to what constitutes an injury to means of support, see Meidel v. Anthis, 71 Ill. 241; Hackett v. Smelsley, 77 Ill. 109; McCann v. Roach, 81 Ill. 213.

2 Roth v. Eppy, 80 Ill. 283.

Emory v. Addis, 71 Ill. 273; Hackett v. Smelsley, 77 Ill. 109. See O'Leary v. Frisbey, 17 Ill. App. 553. If some defendants by sales have produced the habit of drinking and others by sales the particular intoxication which resulted in death, only the latter can be held by the widow. Tetzner v. Naughton, 12 Ill. App. 148.

Emory v. Addis, 71 Ill. 273.

5 Hackett v. Smelsley, 77 Ill. 109. Hackett v. Smelsley, 77 Ill. 109. To permit recovery for death she must show a sale or gift of the liquor, which wholly, or in part, caused the intoxication; death caused by the intoxication; injury from the death to

her means of support. Flynn
Fogarty, 106 Ill. 263. A death re-
sulting from an assault commit-
ted upon the husband for abusive
language used by him while in-
toxicated, is not to be referred to
the sale of the liquor as the cause.
Shugart v. Egan, 83 Ill. 56. A fall suf
fered by a wife while following her
intoxicated husband to see where he
got liquor, is not the natural and prox
imate result of the sale. Johnson €.
Drummond, 16 Ill. App. 641. But a
person shot by a drunken man
because of the intoxication, may
recover of the seller. King v. Ha
ley, 86 Ill. 106. Where one is
killed while drunk by a train, the
death cannot be said not to be a
proximate result of the sale when he
had to cross tracks to reach his home
in going from the saloon. Schroder
v. Crawford, 94 Ill. 357.

7 Brannan v. Adams, 76 Ill. 331.
8 Confrey v. Stark, 73 Ill. 187.
• Brannan . Adams, 76 Ill. 331.

10 Robinson v. Randall, 82 Ill. 521. In this case it is held that the mere

Indiana. "Any person or persons who shall, by the sale of intoxicating liquor, with or without permit, cause the intoxication, in whole or in part, of any other person, shall be liable for and be compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, for every day he or she is so cared for, which sum may be recovered in an action of debt before any court having competent inrisdiction.'

"In addition to the remedy and right of action provided for in section eight of this act, every husband, wife, child, parent, guardian, employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name, severally or jointly, against any person or persons who shall, by selling, bartering or giving away intoxicating liquors, have caused the intoxication, in whole or in part, of such person; and any person or persons owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that intoxicating liquor is to be sold therein, or having leased the same for other purposes, shall knowingly permit therein the sale of intoxicating liquor, or who having been informed that intoxicating liquor is sold therein that has caused, in whole or in part, the intoxication of any person, who shall not immediately, after being so informed, take legal steps, in good faith, to *dispossess said tenant or lessee, shall be liable jointly [*246] with the person selling, bartering, or giving away intoxicating liquor as aforesaid, to any person or persons injured, for all damages, and for exemplary damages: Provided, however, that execution on any such judgment shall first be levied on the property of the person selling, bartering or giving away such liquor; and in the event of a failure or insumcic..y of such property to satisfy the judgment, then on the property of the other defendants. A married woman shall have the same rights to bring suit and to control the same, and the amount received as a

fact that one has a prejudice against persons engaged in the sale of intoxicating liquors does not disqualify him from sitting as a juror, but if he will not give the same weight to the

testimony of one so engaged that he would to persons engaged in other business, he is disqualified.

1 General Laws, 1873, p. 154, § 8.

femme sole, and all damages received by a minor under this act, shall be paid either to such minor or to his or her parent, guardian, or next friend, as the court shall direct. The unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent, upon the premises where such unlawful sale, bartering, or giving away shall take place. All suits for damages under this act may be by any appropriate action in any of the Courts of this State having competent jurisdiction. All judgments recovered under the provisions of this act may be enforced without any relief or benefit from the valuation or appraisement laws." "

Under this provision a wife bringing suit must establish the following facts: 1. The intoxication of the husband, habitual or otherwise. 2. That she has been injured in person or property, or means of support, in consequence of such intoxication. 3. That the intoxication from which the injury resulted was caused, in whole or in part, by the selling, bartering, or giving of intoxicating liquors to her husband by the defendant. Each person

who, by selling, bartering, or giving intoxicating liquors, [*247] *contributed in part to the intoxication causing the in

jury complained of, is liable to the full extent of the injury, and all such persons may be joined, or one may be sued.' And a clerk or salesman who sells liquor is a joint wrong-doer with his principal, and may be joined in an action with him. A wife sufficiently avers her injury by alleging that her husband was intoxicated by liquor purchased of the defendant, and thereby neglected his work and squandered his money, and damaged

'General Laws, 1873, p. 155, § 12. This act was repealed in 1875, and a new act substituted which required a bond of all dealers in liquors, to be given to the State and filed with the county auditor, and contained the following provision: "Every person who shall sell, barter, or give away any intoxicating liquors in violation of any of the provisions of this act, shall be personally liable, and also liable on his bond filed in the auditor's office, as required by section four of this act, to any person who shall

sustain any injury or damage to their person or property, or means of support, on account of the use of such intoxicating liquors so sold as aforesaid, to be enforced by appropriate action in any court of competent jurisdiction." General Laws, Special Session, 1875, p. 59, § 20. No decisions are reported under this provision.

2 Fountain . Draper, 49 Ind. 441. 3 Fountain . Draper, 49 Ind. 441. 4 Barnaby . Wood, 50 Ind. 405; English v. Beard, 51 Ind. 489.

2

the plaintiff in her means of support.' One who was prevented from following his usual occupation by being struck, beaten, and wounded by an intoxicated person, was held entitled to a remedy against the liquor-seller under this statute, and was not required. to join the intoxicated person as co-defendant. But where an intoxicated person, while in that condition, received an injury which he would not have received if sober, and which resulted in his death, the intoxication, it was held, was only the remote cause of the death, and therefore an action could not be sustained by his widow under this statute. Under section eight, above quoted, the plaintiff was entitled to recover for taking care of the intoxicated person only for the time he remained intoxicated."

3

When the wife sues, her anxiety of mind, mortification, sorrow and loss of her husband's society cannot enter into the measure of damages she may recover; and if the sale of liquor to the husband was an illegal act, exemplary damages cannot be awarded, as that would be in effect to expose the seller to double punishment."

This legislation is constitutional, and it applies to those licensed to sell intoxicating liquors as well as to others." It is not necessary, when the wife sues for an injury in her person and means of support, that she should unite her husband with her as plaintiff.

*Iowa. "Any person who shall, by the manufacture [*248] or sale of intoxicating liquors, contrary to the pro

visions of this chapter, canse the intoxication of any other person, shall be liable for and compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, and one dollar per day in

1 Barnaby. Wood, 50 Ind. 405. See Schlosser v. State, 55 Ind. 82.

* English . Beard, 51 Ind. 489. The liquor seller is liable to the owner of a horse borrowed by the buyer of the liquor for injury to it due to the buyer's inability to drive after being placed in the vehicle by the seller. Dunlap . Wagner, 85 Ind. 529.

Krach. Heilman, 53 Ind. 517; Collier . Early, 54 Ind. 559; Backus t. Dant, 55 Ind. 181.

Krach. Heilman, 53 Ind. 517. Proof that beer was sold, without showing what kind of beer, or that it was intoxicating, does not show an unlawful sale. Schlosser v. State, 55 Ind. 82.

5 Korner v. Oberly, 56 Ind. 284; Schafer v. Smith, 63 Ind. 226.

6 Wilkerson v. Rust, 57 Ind. 172, citing the preceding cases.

7 Wilkerson v. Rust, 57 Ind. 172. Mitchell v. Ratts, 57 Ind. 259.

addition thereto for every day such intoxicated person shall be kept in consequence of such intoxication, which sums may be recovered in a civil action before any court having jurisdiction thereof." 1

"Every wife, child, parent, guardian, employer, or other person, who shall be injured in person or property or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, shall have a right of action, in his or her own name, against any person who shall, by selling intoxicating liquors, cause the intoxication of such person, for all damages actually sustained, as well as exemplary damages; and a married woman shall have the same right to bring suit, prosecute and control the same, and the amount recov ered, as if a single woman; and all damages recovered by a minor under this section shall be paid either to such minor or his parent, guardian, or next friend, as the court shall direct, and all suits for damages under this section shall be by civil action in any court having jurisdiction thereof.""

The words "any person who shall, by selling," etc., in a previous statute, giving a similar right, were held to embrace any person making the sale, whether the owner or the son, clerk or servant of the owner. A joint action will not lie against several persons whose places of business are distinct, who make separate sales of liquor to the same person, at least where it does not appear that such sales caused a single act of intoxication. It is not enough that their sales contributed to a general besotted condition. The wife suing cannot recover, unless she shows an actual injury. And where she sues for an injury to her means of support by the sale of intoxicating liquors to her hus band, the question what circumstances will warrant exemplary

'Code of 1873, p. 288, § 1556. The chapter is the Prohibitory Liquor Law, so called.

2 Ibid. § 1557.

3 State v. Stricker, 33 Iowa, 395; Worley. Spurgeon, 38 Iowa, 465.

4 La France . Krayer. 42 Iowa, 143. Each one who contributes to the intoxication is liable only for the damage caused by his own act. Richmond, Shickler, 57 Ia. 486; Flint v.

Gauer, 66 Ia. 696; Higgins . Kavanaugh, 52 Ia. 368.

5 Hitchner. Ehlers, 44 Iowa, 40. Calloway. Laydon, 47 Ia. 456. Evidence of abusive language and conduct is inadmissible unless it has affected the woman's health. Welch v. Jugenheimer, 56 Ia. 11. But mental suffering if the result of injury to the person may be compensated. Ward v. Thompson, 48 Ia. 588.