Sanderson v. Lysager , 41 S.D. 320 ( 1918 )

WHITING, J.

This action was brought by the wife of the party to whom it was alleged intoxicating liquors were sold, upon a bond given under the provisions of the intoxicating liquor laws of this state — the recovery being sought under section 2849 the Political Code, the material parts of which read as follows:

“And it shall be lawful for any married woman or any other .person at her request to institute and maintain in her own name a suit on any such bond mentioned in this article for all damages sustained by her or by her children on account of such traffic; and the money when collected shall be paid over for the use of herself and children.”

Trial was had to the jury; verdict and judgment were for plaintiff. From the verdict, and order denying a new trial, this appeal was taken.

[1] There are numerous assignments of error, but we find it unnecessary to consider but two of them-. As above noted, the statute authorizes the injured wife to maintain an action in her own name and recover therein -damages sustained by her or by her children. In the complaint in this action plaintiff set forth the number and ages of her minor children, and alleged a failure of defendant to support them; also alleged that while intoxicated he abused such minor children. She did not allege that, because of the above facts, the minor children -had suffered any damages; the sole allegation as to the damages being that, 'by reason- of the facts alleged, she had suffered damages. Upon the trial plaintiff offered evidence as to the number and ages of minor children. -This evidence was ob-j ected to as incompetent and ' immaterial, and the overruling of the objection is assigned as error. We think the court committed no error, for the reason that plaintiff was entitled to lay the foundation for-a recovery of damages for nonsupport. She 'being legally liable .for the support of the children, it was a direct damage to her if her husband failed to support them. Garrigan v. Kennedy, 19 S. D. 11, 101 N. W. 1081, 117 Am. St. Rep. 927, 8 Ann. Cas. 1125.

[2] Evidence was offered to show that the father, while drunk, misused the children. This evidence was objected to as incompetent and immaterial in this case. This objection was overruled. This ruling we think erroneous. Under proper pleading alleging damage suffered by the children, the mother could have recovered damages suffered by the children; but, where she alleged damage to herself only, the mistreatment of the children was immaterial under the pleading. We do not wish to be understood as holding that the complaint must allege the amount suffered by each person on whose behalf the wife and. mother sues. We are of the opinion that she could have alleged that the damage suffered by herself and the children aggregated' a certain amount. But the pleading should show that she is suing to recover the damages suffered by all, so that it would stand as a bar to an action to recover damages for injuries suffered ¡by the children.

We deem it unnecessary to consider any further assignment of error.

The judgment and order appealed from are reversed.