Hollis v. Davis

FROM HILLSBOROUGH CIRCUIT COURT. The learned counsel for the defendant admits, in his argument, that the act of 1870, upon which this action is founded, might be construed to include a municipal corporation, if sound policy required it. It is claimed that the general policy of the law, in this state, in relation to the relief of the poor, is, that the burden shall be made to fall on town and county municipalities, where the burden of their support may be sustained without the risk of reducing others to pauperism; and that the courts in this state, ever since the early cases of Hillsborough v. Deering,4 N.H. 94, and Dover v. McMurphy, ib. 158, have refused to give to the statute, making parent and child liable for the support of the other when in need of relief, the construction which its terms would seem to require, or at least, would admit, to wit, that the parent or child sought to be charged should be held liable for the support, when he has the means to supply it, for the time being. It is further claimed, that the construction of the act in question, contended for by the plaintiff in order to maintain this action, is in direct contravention of the recognized policy of the law on the subject of the support of paupers.

The provisions of the statute referred to are as follows: "The relations of any poor person, in the line of father or grandfather, mother or grandmother, children or grandchildren, of sufficient ability, shall be liable to maintain such person when standing in need of relief. If such person has no such relations of sufficient ability, the town wherein such person has a legal settlement shall be liable for his support." Gen. Stats., ch. 74, sec. 8. In giving construction to this statute, the court, in Colebrook v. Stewarstown, 30 N.H. 114, laid down the rule as follows: "The question is to be decided with reference to the existing state of things. * * If the relative, in the present state of his family and means, and in the present state of destitution of his relatives and their ability to support themselves, cannot afford the assistance their situation calls for without reducing his property below the amount required, with his labor, to afford a comfortable support to his family, and thus hazarding their comfortable support in future, he is not to be deemed a person of sufficient ability, within the meaning of the statute." To the same effect are Hillsborough v. Deering and Dover v. McMurphy, supra.

It will be noticed, that the statute, in relation to the support of paupers, imposes that burden on relations "of sufficient ability" only. It will also be noticed, that, in the act of 1870, upon which this suit is founded, the qualification, that the person sought to be charged must be of sufficient ability, is omitted. The omission of these words affords strong grounds for the inference that the qualification of sufficient ability was not intended to apply. The statute, unquestionably, was intended to be in aid of the general statute prohibiting the sale of spirituous liquors. Such is its title; and its provisions are such that, when enforced, they must materially aid in the enforcement of the provisions of ch. 99 of the General Statutes. It would seem that the legislature intended to say to those who might seek to violate its provisions, in effect, something like this: "The indiscriminate use of intoxicating liquors is the prolific source of much of the poverty, suffering, and crime of the state. Its sale, except for certain limited and proper purposes, is therefore forbidden. If any one shall, notwithstanding its sale is prohibited, wilfully violate the provisions of the law in that regard, he shall, upon conviction, suffer fine or imprisonment. But, inasmuch as experience has shown that the law is often violated, and the detection and conviction of the guilty not always certain, we will, therefore, throw around the citizens of this state an additional protection, by subjecting every one who shall dare to violate this law to the liability of making good whatever damages may happen in consequence of the intoxication of any person from the use of liquor so unlawfully furnished, although the consequence may be that the person subjected to such damages may be thereby reduced to poverty, and himself and his family thereby made liable to become a public charge for their support." The apprehension of such a result might, in the minds of the legislature, be considered an additional restraint upon persons who would otherwise not hesitate to disobey the law in this respect. If the legislature had not intended to include persons liable to towns for injury to paupers, in consequence of intoxication from liquors unlawfully furnished, it would have guarded against such a construction of the statute by inserting language excluding such liability, except in persons of sufficient ability.

The term "party" used in the statute is also broad enough to include a municipal corporation. The act provides that "any person who shall be in any manner dependent on such injured person" may recover. "Person" is here the proper word to be employed, for none but persons could be dependent on another person. A municipal corporation is not dependent on a person "for means of support," nor in any other sense. The act next provides that "any party on whom such injured person may be dependent" may recover. If instead of "party" the word "person" had been used, it could doubtless be extended and applied to bodies corporate and politic, as well as to individuals — Gen. Stats., ch. 1, sec. 9; but from the fact that the legislature used the word "person" where only individuals and not corporations could be dependent, and used the word "party" where an injured person might be dependent on a municipal corporation as well as on an individual, there is strong reason for holding that, by the term "party," the legislature intended to include municipal corporations as well as individuals.

Before dismissing this view of the case, it is hardly necessary to add, that if the question of liability depends upon the ability of the person sought to be charged, it would be a fact to be settled by the jury upon the trial.

The defendant admits that there are five different cases specified in the third section of the act, for which a remedy by action is there given, and all of them involving such private and personal relations as that of parent and child, husband and wife, and an injury to either with a remedy to the other, or without involving such relation, founded on an injury to person or property, with a remedy to the party injured. It is also admitted, that if, after the words "any party on whom such injured person may be dependent," in the third section, the words "or may become dependent by reason of such injury" had been added, a sixth case not embraced in the act would have been provided for, so as to include the case of an emancipated son not dependent on his father of sufficient ability for the means of support, because supporting himself by his own labor, but made dependent on him by reason of the injury: although in case of such amendment the defendant contends that the act could not be construed to embrace the plaintiffs' case without an express declaration of such intention, upon the ground above presented; that considerations of public policy would forbid such construction without such declaration.

The first part of section 3 relates solely to the case of injury by one intoxicated to the person or property of another, with a remedy to such other. As to the construction to be given to so much of the act, no question is raised, and none was raised, except as to the form of the action, in Bodge v. Hughes, 53 N.H. 614. The remainder of the section undoubtedly includes the second, third, fourth, and fifth cases mentioned in the defendant's brief. But it is claimed that the act does not include the case of a person who is not dependent at the time of the injury: that in order to include a person who becomes dependent in consequence of such jury, the words "or may become dependent by reason of such jury," or words of like import, should be inserted, so that the section would read, "any person who shall be in any manner dependent, or may become dependent by reason of such injury, on such injured person for means of support, or any party on whom such injured person may be dependent, or may become dependent by reason of such injury, may recover from the person unlawfully selling,"c. And I think the defendant is right in the construction he contends for. If the legislature intended to make a person who furnishes intoxicating liquor, in such a case liable for damages caused by a person intoxicated from such liquor, or for damages happening to him if the relation of dependency did not exist at the time the injury was caused or happened, but was created by reason of such injury, it has failed to say so. The reason may be equally good for making such legislation apply in the latter as in the former case; but the question is not whether it ought so to apply, but has the legislature so enacted? The language used, — "any person who shall be in any manner dependent," or, "any party on whom such injured person may be dependent," — cannot be construed to mean any person who shall become or may become dependent by reason of such intoxication. The words, according to their common and approved usage, refer to the time of the injury, and not to a time subsequent, and must be so construed. Gen. Stats., ch. 1, sec. 2. The intention is to be gathered from the language used, and cannot be extended by judicial construction to a case not embraced within the fair construction of the act. If it had been the legislative intent to extend the act to cases of dependencies happening after the injury, and caused thereby, the framers of the act would hardly have failed to express themselves in language that could not be misunderstood.

As the case stated in the declaration does not come within the terms of the act, the demurrer must be sustained.