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lamages is for the jury, and the court should not instruct [*249] The jury that certain facts should or should not aggravate he damages.1

Kansas.

"Every person who shall, by the sale, barter or gift of intoxicating liquors, cause the intoxication of any other peron, such person or persons shall be liable for and compelled o pay a reasonable compensation to any person who may ake charge of and provide for such intoxicated person, and five dollars per day in addition thereto for every day such intoxicated person shall be kept in consequence of such intoxication; which sum may be recovered by a civil action before any court having jurisdiction.

“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, such wife, child, parent, guardian, employer or other person shall have a right of action. in his or her own name against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same and the amount

1 Goodenough v. McGrew, 44 Iowa, 670. But later it has been held that the plaintiff has a right to such damages in every case where there has been a willful violation of statute which has occasioned injury. Fox Wunderlich, 64 Ia. 187. See Weitz . Ewen, 50 Ia. 34; Ward v. Thomp son, 48 Ia. 588. Under another statute providing a forfeiture to the school fund by any person who should give or sell intoxicating li quors to an intoxicated person, it was held not necessary to prove that defendant knew the person was intoxicated. Church v. Higham, 44 Iowa, 482. Wine is "intoxicating liquor." Worley. Spurgeon, 38 Iowa, 465. If the wife voluntarily contributes to the intoxication she cannot recover.

Huff o. Aultman, 69 Ia. 71. But she may if she buys from compulsion or to keep husband at home. Ward v. Thompson, 48 Ia. 588. Or if she did not assent to the sale causing the particular intoxication from which injury ensued. Rafferty v, Buckman, 46 Ia. 195. Plaintiff need not prove her case beyond a reasonable doubt. Welch v. Jugenheimer, 56 Ia. 11. To hold the owner liable it was held that it must appear that he knew and consented to the sale to the person in question. Meyers v. Kirk, 57 Ia. 421, but the consent may be inferred from circumstances. Loan v. Etzel, 62 Ia. 429. But under the present act mere knowledge of the use of the building is enough. Judge . Flournoy, 37 N. W. Rep. 130.

recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor or to his or her parents, guardian or next friend, as the court shall direct; and all suits for damages, under this act, shall be by civil action in any of the courts of this State having jurisdiction thereof.

"The giving away of intoxicating liquors, or other shifts or device to evade the provisions of this act, shall be deemed and held to be an unlawful selling within the provisions of this

act."

Maine. The Prohibitory Liquor Law, so called, provides

that if any person not authorized as thereby provided [*250] "shall sell any *intoxicating liquors to any person, he shall be liable for all the injuries which such person may commit while in a state of intoxication resulting therefrom, in an action on the case in favor of the person injured."

Massachusetts. "Every husband, wife, child, parent, guardian, employer, or other person, who is injured in person, property, or means of support, by an 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, severally or jointly, against any person or persons, who, by selling or giving intoxicating liquor, have caused, in whole or in part, such intoxication; any person or persons owning, renting, leasing, or per

'General Statutes, 1868, p. 399, §§ 9, 10, and 11. Laws of 1881, ch. 128, § 15. While each child has a right of action, the children cannot bring a joint action. Durein v. Pontious, 34 Kan. 353. A seller is liable who directly contributes to the intoxication though others have caused it in part. Werner, Edmeston, 24 Kan. 147; Jockers. Borgman, 29 Kan. 109. The wife is not barred because she signed a petition to allow defendant to sell. Id. Exemplary damages are not to be given unless the conduct of the seller has been wanton, reckless or willful. But it is wanton if a sale is made after the wife, finding the hus

band drunk in a saloon, has notified the keeper to sell no more to him. Id.

2 Rev. Stat. 1871, p. 304, § 32. In Rev. Stat. Me. 1883 Ch. 27 § 49, are provisions in the main like those in § 21 of Mass. Act printed above. There can be no exemplary damages without actual damages. Gilmore . Mathews, 67 Me. 517. The owner who knowingly has a building in which liquors are kept for sale is liable. The cause of action is the causing or contributing to intoxication. McGee v. McCann, 69 Me. 79. Parents cannot join in an action for death of son caused by intoxication. Id.

mitting the occupation of any building or premises, and having knowledge that intoxicating liquor is to be sold therein, or who, having leased the same for other purposes, shall knowingly permit therein the sale of any intoxicating liquor, shall, if any such liquor sold or given therein causes in whole or in part, the intoxication, of a person, be liable, severally or jointly with the person or persons selling or giving intoxicating liquor as aforesaid, for all damages sustained; and the same may be recovered in an action of tort: Provided, that no lessor of real estate shall be liable for such damages if the occupant holds a license for the sale of such liquor and provided, further, that no owner or lessor of any building or premises held under lease, on the 13th day of April, in the year 1879, shall be liable under the provisions of this section for any damages resulting from the lawful sale or giving away of spirits or intoxicating liquor on said premises during the term of said lease. A married woman may bring such action in her own name, and all damages recovered by her shall enure to her separate use; and all damages recovered by a minor shall be paid over to such minor, or to such person in trust for him, and on such terms, as the court may direct. In case of the death of either party the action and right of action shall survive to or against his executor or administrator. The party injured, or his or her legal representative may bring either a joint action against the person intoxicated and the person or persons who furnished the liquor, or a separate action against either.

"Whoever, by himself or his agent or servant, shall sell or give intoxicating liquor to any minor, or allows a minor to loiter upon the premises where such sales are made, shall forfeit one hundred dollars for each offense, to be recovered by the parent or guardian of such minor, in an action of tort.

"The husband, wife, parent, child, guardian or employer of any person who has or may hereafter have the habit of drinking spirituous or intoxicating liquor to excess, may give notice in writing, signed by him or her, to any person requesting him not to sell or deliver spirituous or intoxicating liquor to the person having such habit. If the person so notified at any time, within twelve months thereafter, sells or delivers any such liquor to the person having such habit, or permits such person to loiter on his premises, the person giving the notice may, in an action of tort, recover of the person notified such sum not less than one

hundred nor more than five hundred dollars, as may be assessed as damages: Provided, the employer giving said notice shall be injured in his person or property. A married woman may bring such action in her own name, and all damages recovered by her shall inure to her separate use. In case of the death of either party, the action and right of action shall survive to or against his executor or administrator."1

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*Michigan. "Every wife, child, parent, guardian, husband, or other person who shall be injured in person or property or means of support by any intoxicated person, or by reason of the intoxication of any person, or by the reason of the selling, giving, or furnishing any spirituous, intoxicating, fermented or malt liquors to any person, shall have a right of action in his or her own name against any person or persons who shall, by selling or giving any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury; and the principal and sureties to the bond hereinafter mentioned, shall be liable, severally and jointly, with the person or persons so selling, giving, or furnishing any spirituous, intoxicating, or malt liquors as aforesaid; and in any such action provided for in this section the

1 Pub. St. Mass. Ch. 100, § 21, 24, 25. A subsequent section provides that "the terms intoxicating liquor or liquors, in this act shall be construed to include ale, porter, strong beer, lager beer, cider, and all wines, as well as distilled spirits."

A dealer who has been requested by a wife not to sell to her husband who drinks to excess, is liable for his servant's sale to such husband although the servant negligently disobeys orders in making such sale. George v. Gobey, 128 Mass. 289. What is a sufficient notice. Kennedy v. Saunders, 142 Mass. 9. A husband may maintain an action for injury to his means of support by selling his wife liquor. Moran v. Goodwin, 130 Mass. 158. If a defendant has caused the intoxication in whole or in part, he is liable for the whole damage. There is no

apportionment of damage. Bryant . Tidgewell, 133 Mass. 86. But no recovery can be had for intoxication caused by a habit to the formation of which a defendant has contributed, unless he caused the particular intoxication complained of. Id. There is nothing in the act giv ing a right to recover for death due to intoxication. Barrett v. Dolan, 130 Mass. 366.

A dealer may be liable for selling to a minor, giving to him and allowing him to loiter on the premises, though all three violations were part of the same transaction. The moth er may bring an action in such case in the absence of proof that the minor's father is living. McNeil Collinson, 130 Mass. 167. As to the liability of surety on dealer's bond, see Day . Frank, 127 Mass. 497.

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plaintiff shall have a right to recover actual and exemplary damages. And in every action by any wife, husband, parent, or child, general reputation of the relation of husband and wife, parent and child, shall be prima facie evidence of such relation; and the amount recovered by every wife or child shall be his or her sole and separate property." The previous statute, repealed in 1875, was somewhat less comprehensive. It provided "that every wife, child, parent, guardian, husband, or other person, who shall be injured in property, means of support, or otherwise, by any intoxicated person, or by reason of the intoxication of any person, shall have a right of action in his or her own name against any person or persons who shall, by selling or giving any intoxicating liquor or otherwise, have caused or contributed to the intoxication of such person or persons; and in any such action the plaintiff shall have a right to recover actual and exemplary damages."

*Under the repealed statute it was held that one was not [*252] liable for the consequences of an unauthorized appropriation of his liquors by another without his knowledge. Nor should he be charged with exemplary damages, unless his conduct was willful, wanton, reckless, or otherwise deserving of punishment beyond what the requirement of mere compensation would impose. But it is no excuse for him that the sale or gift was by his servants employed in his business, and in disobedience of his orders. The statute contemplates the recovery of damages to the extent of the injury in every case, and of exemplary damages where they

1 General Laws, 1875, p. 284. § 3, as amended; General Laws, 1877, p. 213; 1883, p. 215. The bond mentioned is one which every liquor dealer is required to give, the condition of which is not to sell or deliver liquors to any minor, habitual drunkard, or person in the habit of becoming intoxicated, or to any person whose husband, wife, parent, child, guardian, or employer shall notify him that he is in the habit of drinking to excess, etc.

2 General Laws of 1871, p. 363. This was an amendment to the Prohibitory Liquor Law, so called. Comp.

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L. 1871 Ch. 79. The same section
declared all payments for liquors sold
in violation of law should be "con-
sidered as having been received with-
out consideration, and against law
and equity, and any money or other
property paid therefor may be recov
ered back by the person paying the
same, his wife, or any of his chil-
dren, or his parent, guardian, hus-
band, or employer." See Hemmens
v. Bentley, 32 Mich. 89.

3 Kreiter v. Nichols, 28
So under act of 1875.
Peters, 41 Mich. 475.
Reynolds, 8 Hun, 128.

Mich. 496.

Kehrig v.

See Smith v.

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