Wright v. Smith

Cobb, P. J.

(After stating the facts.)' “A father, or, if the father be dead, a mother, shall have a right of action against any person who sells or furnishes spirituous liquors to-his or her son under age, for his own use, and without his or her permission.” Civil Code, §3871. The effect of this section of the code is to declare the act to which it refers to be a tort, and to give the parent a right of action therefor. In an action for a tort of this character, as is true in cases of actions for torts generally, the plaintiff may recover both general and special damages. The plaintiff, however, is not compelled to sue for all the damages which the law entitles him to recover. He may sue for general damages alone, or he may sue for special damages only, or his petition may embrace a claim for damages of each character. The petition in the present ease alleges that the act of the defendant has damaged the plaintiff in the sum of $500. The petition enumerates the items of special damage.; and the amounts so stated are in the aggregate, the exact sum sued for It would seem that the purpose of the plaintiff was simply to ask a recovery of his special damages, and that he had waived the right to recover general damages. Even if it can not be said that this was clear from the averments of the petition, there is a doubt as to whether the pleader intended to claim general as well as special damages.- Pleadings are construed most strongly against the pleader; and applying this rule to the petition in question, it must be held that under the averments of the petition, the plaintiff would be entitled to recover only the special damages alleged. - Such being the case, the judge erred in.charging the jury the law in reference to general damages.

Judgment reversed.

All the Justices concur.