Dickmann v. Thomas , 36 S.D. 283 ( 1915 )

GATES, J.

This is an action- by a widow, on behalf of herself and minor children, against a saloon keeper and his surety upon his bond, to -recover damages caused by the sale of 'intoxicating liquors -to' her husband, resulting, it is .alleged, in his suicide. Pol. 'Code, § 2849, and- § 2844, ¡as amended by chapter 247, Laws 1909. Verdifct and judgment were rendered in favor of plaintiff in the sum of $-1,000 against the -defendant and his surety. From such judgment and an -order denying a new ¡trial, defendant has appealed. The surety company did not ¡appear in the -cause.

[1,2] It is claimed that -the evidence is insufficient to sustain the verdict. The evidence on behalf .of plaintiff tended to¡ show that the husband was in the habit of -becoming intoxicated (Sandige v. Widmann, 12 S. D. 101, 80 N. W. 164); that he was in an intoxicated -condition practically all of the time during the -last month of his life; that on the afternoon of November 1, 1912, defendant sold’ him a bottle of whisky; that he drank -part of it; that he came home drunk; that on the way he fell off the hayrack; ¡that ■he qju-arreled with his wife, and threatened to throw her and their sick ¡child out of -the house; that he went to a bureau, and then went out -of the house-; ¡that a moment later .there: was-a “gun crack”; that immediately thereafter he was found lying, on- the ground near the barn groaning with a hole in his breast; that lying near him w-a-s his shotgun; and that he died. It is.particularly urged that the evidence was insufficient -to sustain the , inference of suicide, -and -that -there was no evidence to- show a breach of. the bond, in that the place of sale was not proven to be upon.the lot and bloGk,described in defendant’s license and bond. Tt was conceded that defendant was duly licensed to engage in the business ■of selling- intoxicating liquors on lot 19, block 19, of the city of Winner, S. D. The evidence tended to show that from July 17, 1912, to July, 1913, the defendant was actually engaged in the saloon business at Winner, and that the sale to plaintiff’s decedent on November x, 1912, was made at defendant’s saloon. In the absence of any evidence tending to show that defendant was operating more than one saloon at Winner, we think the evidence suf ficient to justify the jury in believing, that the sale was made at the only place the defendant could, under the evidence lawfully carry on such business. The defendant urges that it must be proven beyond a reasonable doubt that, defendant committed suicide, and that, measured' by that rule, the evidence was insufficient to' support 'the verdict. We are not aware of any rule of evidence applicable to this case, which required the allegations of the complaint to be proven by more than a preponderance of the evidence. The evidence above set forth tended to- .prove suicide. In the absence of any evidence tending to- show -that death was caused by the act of another or by any other means than the shotgun, the evidence offered was sufficient to justify the verdict.

[3] It is next urged that, because the answer of the surety •company was not filed at the time of trial, the cause was not properly at issue. Circuit court rule 1 provides in part as follows:

“And no civil action shall be placed on the calendar until the summons and pleadings, upon which the' issues to be tried arise, are filed.”

Even if this were a question which any one besides the surety company could properly raise, we fail to find anything in the record indicating that the surety did serve an answer. Nor can we find that such alleged violation of the rules was ever called to the attention of the trial court.

[4] It is next urged that the trial court erred in excluding evidence offered to- show that on the date of decedent’s death he bought whisky from a drug store. Such evidence was wholly immaterial. Garrigan v. Kennedy, 19 S. D. 11, 101 N. W. 1081, 117 Am. St. Rep. 927, 8 Ann. Cas. 1125, Section 2849, Pol. Code, in part provides:

“On the trial of any- suit under -the provisions of this article the cause and foundation whereof shall be -the acts done or injuries inflicted' by a person under the influence of liquor, it shall only be necessary to sustain the action to prove that the defendant or defendants sold or gave away the liquors to the person so intoxicated or under the influence of liquor, whose acts or injuries are complained of, on that day or about that time when s'aid act9 were committed or said injuries were received; and in an action for damages brought by a married woman or other person whose support legally devolves upon a person disqualified by intemperance from earning the same, it shall only be necessary to prove that the defendant has given or sold intoxicating drinks to such .person during the period of such disqualification.”

If another person sold whisky to the husband of plaintiff at or about the same time, such other person might also be liable to plaintiff, but such liability would not be a joint liability. Kennedy v. Garrigan, 23 S. D. 265, 121 N. W. 783, 21 Ann. Gas. 392. In that case this court said:

“The Legislature has prescribed the amount and condition of ■the bond to be given by each seller of intoxicating liiquors, but has nowhere limited by statute the damages except as to the amount in each individual bond which might be recovered. No provision for contribution between different sellers is found in the statute.”

In this 'connection we quote with approval, as also applicable to our statute, -the following from Theisen v. Johns, 72 Mich. 285, 40 N. W. 727:

“We do noit think that damages under this statute can be lessened or enhanced from the fact that a minor may have drank at other places, nor can the liability be apportioned merely because the injury was due in part to the acts of others than the defendant. * * * And' we are of the opinion that, under this statute, it is immaterial whether others had made sales to the minors or not. If the defendant made sales to them, and they were under the age of 18 years, it was a violation of the statute, and gave the plaintiff- a right of action for damages, and these damages could not be lessened by the fact of sales made by others.”

[5] It is lastly urged that a new trial should be granted on the ground of newly discovered evidence. The .plaintiff first testified that she saw the defendant personally sell her husband whisky on September 23, 1912. This was more than a month before the particular sale complained of. Afterwards plaintiff corrected ¡the date to August 23, 1912. The affidavits offered show: that on August 23, 1912, and for .a continuous- period before and after that date, defendant was -in Nebraska. We fail to see the materiality of such evidence other than to discredit plaintiff’s testimony generally. She did not claim- to know where her husband purchased the whisky on the day of his death and her testimony, aside from the alleged s'ale i-n August, was -practically undisputed. It is not an abuse of discretion to deny a motion for a new -trial on the ground of newly discovered evidence, where such evidence does n-o-t tend to establish or disprove any issue within the pleadings, but either discredits the -testimony of -plaintiff or relates to collateral issues. Smith v. Mut. Cash. Guar. F. I. Co., 21 S. D. 433, 113 N. W. 94; Palmer v. Schurz, 22 S. D. 283, 117 N. W. 150; Axiom Min. Co. v. White, 10 S. D. 198, 72 N. W. 462; Brewster v. Miller, 31 S. D. 613, 141 N. W. 778; Libby v. Barry, 15 N. D. 286, 107 N. W. 972.

The judgment and order appealed from are affirmed.