Du Puy v. Cook — 70 N.Y. St. Rep. 397

Majority

p. 397

Abigail Du Puy, Resp’t, v. Jane Cook, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 16, 1895.)

Headnote

Civil damage act—Who may bring action.

A widow, who is sixty-three years old and owns no property, may recover, where the death of her son who provided for her entirely was caused by intoxication, from the owner of the premises on which the liquor causing the intoxication was sold, and which the owner had leased to the occupant for the purpose of liquor selling.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

Teller & Hunt, for app’lt; F. I). Wright, for resp’t.

The plaintiff’s son, Albert Du.Puy, was drowned on the 20th day of April, 1889, in a race way near Auburn, while in a state of intoxication, caused in part by intoxicating liquors sold to him by one George Miles, who was a tenant of a saloon rented to him by defendant. This action was brought by the plaintiff under the civil damage act of 1873, to recover damages for injury to her means of support occasioned by the death of her said son. The deceased resided with his mother in the village of Owasco, a few miles distant from the city of Auburn. He drove into Auburn on the day he was drowned, and was around among the saloons, drinking liquor. He became intoxicated to such an extent that some of the saloon keepers refused to furnish him more liquor. He went into the saloon of Mr. Miles about eight o’clock in the evening, and called for and drank a glass of ale, which was furnished him by Miles. He was at the time considerably under the influence of liquor. After drinking the beer or ale, he requested Miles to furnish him a bottle of whiskey. Miles refused at first, but on being assured by Du Puy that he wished to use it the next morning for the purpose of straightening himself up, Miles furnished it, and Du Puy paid for it, and left the saloon with the whiskey. Very soon thereafter he offered a drink from the bottle to a Mr. Baker. Baker declined, and Du Puy then put the bottle to his lips, and apparently drank from it. Shortly after, he fell down; then got up, and went to his wagon and started towards his home. As he was about to

p. 398

start, he again invited Baker to drink. He was at the time very-much intoxicated; so much so that Mr. Baker, after riding a short distance with him, became frightened at his manner of driving the horse, and.got out of the wagon, and left the deceased to pursue his journey alone. The evidence tends to show that Du Puy, after Baker left him, left the direct road to his home, and drove across a bridge, and into an embankment of the race way of the Auburn Waterworks Company. His dead body and that of his horse were found a few hours afterward in the water of the race way. The horse, when found, was attached to the wagon. The sale of the beer and whiskey to the deceased by Miles was proven bv the undisputed evidence of two witnesses. That the deceased drank the beer and some of the whiskey was quite clearly established, as was the fact that his intoxication at the time of his death was in part caused thereby. He was at the time of his death thirty-three years old; was unmarried. He was an industrious, competent workman, and was in the receipt of a fair income from his daily labor. He devoted his earnings to the support of his family, consisting of himself, his mother, the plaintiff, and an invalid sister. He had contracted to purchase the dwelling where he lived, and had paid part of the purchase price therefor, and was the owner of a small amount of personal property. He was ordinarily sober, but would occasionally, when absent from home, get intoxicated. He had supported his mother from the time he was seventeen years old till his death. The plaintiff was a widow, sixty-three years old, and was in rather .poor health, although she was able to do, and did do, most of the family housework, and made and repaired a portion of the deceased’s wearing apparel. She had no property except some small articles of household furniture, and had no-other means of support except that furnished by her son.

The question upon which the appellant’s counsel mainly relies-for the reversal of the judgment is that the plaintiff failed to show that she had been injured by the death of her son in any means of support to which she was legally entitled. Chapter 646-of the Laws of 1873, known as the “ Civil Damage Act,’’ provides, so far as is material to this case, as follows:

“ Every parent who shall be injured in person or property or means of support in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action against any person or persons who shall by selling or giving away intoxicating liquors, cause the intoxication in whole or in part of such person or persons, and any person or persons owning or renting or permitting" the .occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable jointly or severally with the person or persons-selling or giving away intoxicating liquors aforesaid, for all damages sustained."

It is the contention of the defendant that the plaintiff was-shown to be able to support herself by her labor, and that, therefore, her son was under no legal obligations to support her. The plaintiff testified that since her son’s death—a period of four or

p. 399

five years—she had been employed nursing the sick, in all about three weeks; that she worked when she was able to, and could find anything to do, but that she had not supported herself entirely, but that her church friends and other acquaintances had furnished her with supplies. She had arrived at an age when most women, especially those not in robust health, who are without other means of support, are dependent upon others for their support. The test is not whether the plaintiff possessed sufficient physical strength, if exerted to its utmost limit, to earn her living in case she should be so fortunate as to find employment Women of her age and condition of health are not likely to be able to find employment that is remunerative. Her case, we think, fairly came within the provisions of section 914 of the Criminal Code, which imposes upon a child of sufficient ability of a poor person who is old, impotent or decrepit, so as to be unable to work to maintain himself, the duty of maintaining such parent This the deceased had voluntarily assumed to do, which answers the requirements of the law as effectually as if the assistance had been rendered by compulsion. Stevens v. Cheney, 36 Hun, 1 , was an action brought under this civil damage act. In discussing this question, Haight, J., states the rule to be as follows :

“ The law affords the same protection to those who perform these duties voluntarily as to those who act under compulsion. And we are of the opinion that, if the plaintiff was a poor person, it was the duty of the son to aid in his support; and, if he voluntarily did this, and the plaintiff has been deprived of his means of support by reason of the intoxication, that then he may recover, even though his child is over the age of 21 years.”

The plaintiff was fairly shown to have been deprived of her means of support by the death of her son. Black, Intox. Liq. § 308.

The verdict was for $1,325. The appellant’s counsel contend that it was excessive. If we were to enter into a computation as to the probable cost of the bare necessaries for the support of the plaintiff, during the probable term of her life, computed by the annuity tables, it might not amount to $1,325. The plaintiff was receiving a generous, comfortable support from her son. She testified that he was a good provider. Such support was of greater value to the plaintiff than would have been the bare necessaries of life. While she was able, at the time of the death of her son, to perform labor which would partially support her, her capacity for labor would naturally and in all probability lessen as she advanced in years. The jury was fully and correctly instructed upon the legal questions involved in the action, and we find nothing in the appellant’s exceptions calling for a new trial.

The judgment and order should be affirmed.

All concur.