Gilmore v. Mathews , 1877 Me. LEXIS 92 ( 1877 )

Danforth, J.

This action is founded upon c. 63, § 4, of the acts of 1872, and comes before the law court upon a general demurrer to the declaration.

An indispensable rule of pleading requires that every traversable fact must be alleged as having occurred on some particular day, month and year. Platt v. Jones, 59 Maine, 232, 240.

• In this case there are no such dates, and in this respect the declaration is defective.

It is equally true that every fact necessary to sustain the action should be not only stated, but be set out distinctly and with certainty, leaving nothing to inference.

In both these respects there is a defect in the declaration. If, as we may infer, the plaintiff relies upon an injury to her means of support, it nowhere appears what means were taken from her. True she alleges a marriage, and the liability of the husband to render her a support follows as an inference of law and need not therefore be stated. But whether as a matter of fact he ever did render any support, or that she was in any way dependent upon him or he upon her is not set out. If she did not rely upon him, or if in fact he did not or could not assist in her maintenance without any habits of intoxication, then his drunkenness would hardly be an injury to that which she never had, or which she was deprived of by other causes. If the injury was to means of support which she had independent of him, it should be so stated and the omission would be equally fatal.

We meet with a somewhat similar difficulty if the claim for damages rests upon an alleged injury to property. In the second averment neither the title to, or value of, the cows claimed to have been destroyed and disposed of is set out. If the cows belonged to the husband or his brother, their destruction would be no ground for an action in favor of the wife. If furnished for the use of the family, the plaintiff could have no cause of action except so far as her own interest in the property, or means of support coming out of it, may authorize; the other members of the family having a right of action so far as necessary to protect their own interests. If the cows were the property of the plaintiff and were destroyed by her husband while in a state of intoxication, the rule of damages would rest upon a very different ground from what it would if they were not hers and the destruction diminished her means of support.

What the other property alluded to in the same averment was does not appear and hence cannot be the foundation of an action or of damages. ,

The next averment relates to the policy of insurance, and perhaps sufficiently sets out the plaintiff’s title, but fails to show the injury. It does state that there was a loss of twelve hundred dollars of the sum insured by reason of the intoxication, but the ground of the loss does not appear. It may have been a condition of the policy, or it may have been in consequence of some act of the deceased claimed to have been prompted by his intoxication or for some other cause. What might have been reasonably certain in this respect, is made uncertain by the addition of the fact that the claim was settled by a compromise. Whatever the ground of the loss the defendant had a right to be informed of it before he could be required to answer.

There are other allegations of damage, but none on which the action can rest. Some of them may be useful as tending to show an aggravation of damages and some are worse than. useless, as they tend to render obscure and uncertain the grounds on which the plaintiff relies to sustain her action. But whatever is useless and can be separated from the useful, though objectionable as tending to undue prolixity and almost necessarily rendering that which otherwise might be plain and certain, obscure and uncertain, is to be rejected as surplusage, and cannot be taken advantage of on demurrer.

But for an omission of such facts as go to the grounds of the action a demurrer will be sustained. Ordinarily an omission in setting out damages does not go to the foundation of an action, but simply reduces the damages to be recovered to that extent. The violation of a right usually carries with it a claim for some damages. But this action is founded upon the statute and must stand or fall in accordance with its provision.

The act is that “every wife, child, parent, guardian, husband or other person who shall be injured in person, property, means of support or otherwise, by any intoxicated person, shall have a right of action against any person or persons who shall . . . 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.”

Here then the right of the plaintiff alleged to have been violated is not simply by a contribution to the intoxication of the husband, but connected with it an injury to her person, property or means- of support as the result of sueh intoxication. It is as necessary to make out the injury as the intoxication and the contribution. The action must fail if there is a failure in the allegation and proof of either.

From this view, it follows that the death of the husband alone as the result of intoxication is not a cause of aetion. There must be connected with it an injury to person, or property, or means of support; and the allegations must show distinctly and directly that such an injury occurred to the plaintiff.

It equally follows that actual damages must be shown before those which are exemplary can be recovered. Hence, the allegations as to the death of the husband and of such matters as may increase the exemplary, damages are not sufficient ground for the action, even if well pleaded. As the allegations of aetual damage are defective on account of the omissions referred to, as well as for the indefinite manner in which they are set out, the demurrer must be sustained. But under the statute the plaintiff may amend upon the payment of costs, as her declaration shows a cause of action, defectively set out.

Appleton, C. J., Dickerson, Yirgin, Peters and Libbey, JJ., concurred.