
    Samuel Boyd v. Frances Watt.
    1. To constitute a liability under the provisions of the seventh section of the law “To provide against the evils resulting from the sale of intoxicating liquors” (2 S. & 0.1432), before the same was amended; where the action is to recover for injuries resulting from habitual intoxication during a period of years, lit is not essential to a recovery that the defendant shall have been the sole cause of such habitual intoxication.
    2. In such case, where the right of action is for the damages to person, property or means of support, resulting from such habitual intoxication, one who contributes to cause that condition by his illegal sales, which of themselves tend to, and are calculated to produce that result, is presumed to have intended it, and is liable for the damages resulting, though others may, by their illegal sales, have contributed thereto, without his knowledge, or without preconcert with him.
    8. Where the damages resulting arise from incapacity for business, and loss of estate, caused by such habitual intoxication, and it becomes impossible to separate the damages caused by others from those caused by the defendant, he is liable for all such damages, if the natural and probable consequences of his illegal acts were to cause such injury.
    4. The statement of a physician, who was in the habit of getting intoxicated, made at the times of his purchases of liquor, that he wanted it for a patient and for medical purposes, does not, in the absence of- proof to the contrary, raise the presumption that it is a sale to the patient.
    Error to the District Court of Guernsey county.
    
      Lucius P. Marsh, for plaintiff in error:
    The statute upon which this suit is based will receive a strict construction. The penalties it imposes and the liabilities it creates will not be extended by- implication. This rule is elementary. Hall v. State, 20 Ohio, 15; Turner v. The State, 1 Ohio St. 424; Moore v. McClief, 16 Ohio St. 53; Sprague v. Birdsall, 2 Cowen, 419; 4 Mass. 145; Ib. 473; Mowson v. Chester, 22 Pick. 387.
    Boyd was only liable for the damages resulting from the sales he made. 2 Hilliard on Torts, 315, sec. 10.' The legislature has not the power to punish a man beyond the consequences of his own acts, or acts to which he knowingly contributes.
    
      Watt was a doctor. Some of the whisky he procured from Boyd, he procured on the representation that he wanted it for a patient. The statute makes Boyd liable for sales to Watt. Sales to another, the whisky being delivered to Watt, are not sales to Watt, and the plaintiff was bound to prove sales to Watt. Such a transaction having no light thrown upon it by other evidence, in the absence of other proof touching such sales, was not a sale to Boyd. This legal proposition is plain enough, and the defendant was entitled to a plain and unequivocal charge upon it. Wash. Mut. Ins. Co. v. M. & M. Ins. Co., 5 Ohio St. 450; Ib. 275; White v. Thomas, 12 Ohio St. 312; L. M. R. R. Co. v. Wetmore, 19 Ohio St. 110.
    
      JET. Skinner J. W. White, for defendant in error,
    claimed that when a person contributes, with others, to produce a common injury, by similar reason he is responsible for the general damage. The rule is that there is no contribution between wrong-doers. This applies to a case where several unite in or contribute to do a common injury, and one is required to pay the damage, he shall not recover back any part from a eoactor, for the reason that such party is severally as well as jointly responsible, and the courts will not aid parties who violate the law. It is no defense to an action sounding in tort that persons who united in or contributed to a wrong, are not united as defendants in an action brought against one of the wrong-doers.
   Johnson, J.

The plaintiff" below, Frances Watt, brought this action under section 7 of the liquor law, so called. (2 S. & C. 1432.)

She alleges that her husband, Joseph Watt, was a physician, having an extensive practice, and from the profits of that practice was able to furnish her a comfortable means of support; that about April, 1865, he became and was in the habit of getting intoxicated, and so continued until his death in 1869, of which the defendant had notice; that during that period, and at sundry and divers times, the defendant sold him, in quantities of from one pint to a quart, intoxicating liquors, causing said Watt to become intoxicated and ah habitual drunkard; and by reason thereof ‘during said period, and resulting therefrom, to become incapable of attending to his usual business, and squandered his estate, and so deprived her of her means of support, to her damage, etc.

To this there was a general denial.

On the trial a bill of exceptions was taken, showing that evidence was given by the plaintiff tending to prove the allegations of the petition, and on the part of the defendant tending to show that some of the liquor which Watt drank, producing some of the intoxication during the period named, and which caused a part of the injury which the plaintiff had sustained in her means of support, was sold to Dr. Watt by other persons than the defendant.

The defendant also offered evidence tending to show that Watt was a practicing physician, and that on some of the occasions when he procured whisky from the defendant he represented that he wanted it for persons whom he named, and was attending for medical purposes, upon which representations the defendant furnished some of the whisky, and that some of the persons named were sick at the time, and were attended professionally by him.

The defendant asked the court to charge the jury that the defendant was only liable for damages to the plaintiff' occasioned by intoxication produced by the intoxicating liquors which the defendant himself had sold to said Dr. Watt, and that the defendant was not liable for any damages produced by the intoxication of said Dr. Watt, occasioned by intoxicating liquors sold to him during said period by other persons; which charge the court refused to give, except as qualified herein; to which refusal the defendant excepted.

The defendant also asked the court to charge the jury, that if Dr. Watt at any of the times when the plaintiff proved he had procured whisky from the defendant, represented to the defendant that he wanted the same for a patient whom he was then attending, and for medical purposes ; in the absence of any other proof in such behalf, and touching such sales, the jury were not authorized to find that such procurement of whisky from the defendant was a sale by the defendant to said Ur. "Watt, which charge the court refused to give; to which refusal the defendant also excepted.

The qualification of the first charge asked for, as given, was as follows:

“ Should you find that the defendant sold intoxicating liquor to Joseph Watt in violation of law, within the time charged in the petition, and that the plaintiff sustained damages by reason of the intoxication of said Watt, caused thereby to her person, property, or means of support, the fact that other persons also sold liquor to said Watt, in violation of law, within that period, and which liquor may have contributed to increase the intoxication, and consequently to enhance the injury resulting to the plaintiff therefrom ; such facts, if they be shown to have existed, will not exonerate the defendant from the consequence of his wrongful acts; but, on the contrary, he will still be responsible for all the injury resulting to the plaintiff from the .intoxication of Joseph Watt, caused by his illegal sales of liquor to him. If you can separate the damages resulting from the intoxication caused by illegal sales to Watt, by defendant from the damages resulting from sales by others, you must do so; but, if such separation can not be made, you will render your verdict against the defendant for all the actual pecuniary damages resulting to the plaintiff in person, property, or means of support, by reason of the intoxication of said Joseph Watt, to which intoxication the illegal sales of intoxicating liquor by the defendant contributed.”

Upon the second point the court charged that, “ a sale to any other person, though the delivery was to an agent who was at the time intoxicated, or in the habit of becoming intoxicated, would not be a violation of law if the person to whom the sale was actually made was a sober person.

“ If it be shown by the evidence that the defendant sold intoxicating liquor to Joseph. Watt, and said Watt was at the time intoxicated, or in the habit of becoming intoxicated, and the defendant had knowledge of such intoxication or habit, the fact that Watt was a physician, and that he at the time represented that such liquor was to be used by him for medicinal purposes, or in the exercise of his profession, would not be a justification of the defendant, nor would it excuse him from the consequence of his act. A sale, under such circumstances, would be a violation of law.

“ If you are satisfied by the evidence that the defendant sold intoxicating liquor upon representations made by Joseph Watt that such liquor was designed for another person, and to be used by such person medicinally; and that he delivered the same to said Watt upon such representation and received pay from him therefor; andthat said Watt was at the time intoxicated, or in the habit of becoming intoxicated, and the defendant then knew that said Watt was intoxicated, or in the habit of becoming intoxicated, such sale would be a violation of the law, unless, the evidence further satisfies you (the burden of proof as to this being on the defendant) that the liquor so sold was actually delivered by Watt to the person for whom he represented it to bo designed,. or that Watt had been authorized by such person to make the purchase for him.”

Under the authority of Adams v. The State, 25 Ohio St. 584, wo do not feel warranted in examining other parts of the charge of the court below, and therefore proceed to notice the points made by the refusal of the court to charge as requested, and by the charges given covering the same points.

The first proposition which the court refused to give, except with the qualification stated, was, that the defendant was only liable for the damages occasioned by the liquors which he had himself sold, and that he “ was not liable for any damages produced by the intoxication of said Dr. Watt, occasioned by intoxicating liquors sold to him during said period by other persons.”

In the charge as given, the jury were properly instructed that, before they could find for the plaintiff, she must satisfy them by a preponderance of testimony that the defendant sold intoxicating liquor to the husband contrary to the act; that he became intoxicated with the liquor so sold; and that 'she was injured in her means of support in consequence of the intoxication so induced. This charge, which it is presumed preceded this request to charge, covers the same ground as this special charge asked.

It is a distinct assertion that the plaintiff’s right of recovery rested solely on the illegal acts of defendant, and grew out of the intoxication so induced by him.

It excluded the idea that the defendant could be made liable for damages resulting from the acts of others.

They were told that before a verdict could be rendered against the defendant, they must find that the plaintiff had been injured in her means of support in consequence of the intoxication of her husband, caused by Ms illegal sales.

Was it necessary to add, that for any damages produced by liquors sold by others he was not liable? We think not.

The court was careful to limit his liability to the consequences of his illegal acts, and the request upon this point was, in effect, to ask the court to repeat the same charge in different language.

The court, however,' did give the charge requested with the qualification stated.

That qualification was, in substance, that if during that period the plaintiff' had sustained damages by the illegal sales by the defendant, the fact that during the same period other persons by their illegal sales had contributed to increase the intoxication, and consequently enhance the damages to the plaintiff, that would not exonerate the defendant from the consequences of his illegal acts.

This proposition is apparently so self-evident in its nature that it hardly needs any argument to support it.

■ It is a well-settled principle, that where a person undertakes to do an unlawful act which will result in injury to another, and actually uses the means calculated to do such act, the fact that third persons have also contributed to that result would not exonerate him from the consequences. To this part of the charge, standing alone, there seems to be no objection. It is only when coupled with that which follows, that is, if they could not separate the damages resulting from the intoxication caused by the defendant from those caused by others, then the defendant was liable for all the injury to plaintiffs means of support to which he contributed.

The charge of the court on the subject of damages was intended to meet three possible aspects of the evidence :

1. If the defendant was the sole cause of the intoxication, he was liable for all the damages resulting.

2. If some of the injury was caused by others, he was not liable for damages resulting from their illegal sales.

3. If the damages could not be separated, then he was liable for all injuries to which he had contributed by his illegal sales.

To this last charge the defendant objects. It is claimed to virtually mate him liable for intoxication caused by others.

The statute gives the action against any person who shall . . . have caused the intoxication.” This intoxication may be “ habitual or otherwise.” A right of action is given for damages resulting from single cases of intoxication or from habitual intoxication. ' Tinder the code several distinct causes of action may be joined in one action for damages growing out of distinct cases of intoxication, when each cause of action is separate and distinct and is between the same parties; but if on trial it appears that some of the acts of intoxication were caused by others, no recovery as to them could be had. In such case the causes of action are separate, and the damages resulting from each are distinct and disconnected, and the causes of action should be separately stated and numbered.

In such a case the question would be as to each case of intoxication, who caused it, and what damages resulted from it. What would constitute a causing of a single act under the statute to render one liable would then arise. That question is not made in this case. The charge is of causing habitual intoxication for' a series of years. The damages alleged are not the proximate results from distinct cases, but the ultimate result of habitual intoxication. This continued habit of drinking is alleged to have rendered the husband incapable of attending to his business, and caused him. to squander his estate. This final result deprived the plaintiff of her means of support. It is a charge of repeated illegal .acts, producing by their united effects an ultimate state or condition of Ur. Watt, out of which the damages arise.

The plaintiff' asks to recover the damages resulting from this state or condition of her husband, caused by repeated illegal sales for a series of years, and not the damages from, a single case of intoxication, nor of a series of distinct cases at different times, caused by separate and distinct illegal sales.

The means used were sales in quantity by the pint and quart. To a person of Ur. Watt’s habits frequent sales in such quantity were calculated of themselves to produce the result complained of.

Every man is presumed to have intended the natural and probable consequences of his acts. The defendant was, in violation of law, using means calculated to produce the alleged injury. If the jury found that this was so, and that the means so employed were so continued as to produce the condition of the husband alleged, then they had the right to presume he intended the result which followed, though others, with or without preconcert, contributed to cause it.

The intent with which the act or acts are done is always an important element in the case. In this case it is peculiarly so. The means used, the force or agency employed, are to be considered in ascertaining that intent.

If, as seems to be claimed, a defendant can only be liable, except in cases of conspiracy or agreement, when he is not the sole cause of the habitual intoxication, and no recovery can be had unless the damages can be separated (an impossibility in most eases of this class), then this part of the statute is virtually a dead letter.

Why should a defendant be exonerated from the injury he has caused by his habitual wrongs for a series of years by showing that others, without his knowledge, have also contributed by like means to this result? ' lie was using adequate means to produce the result, and may therefore fairly be presumed to have intended it. True, he may not have enjoyed a monopoly in the profits accruing, by reason of the competition of others in a common business, but that certainly is no reason why he should not be liable for the injuries he was intentionally engaged in causing. If such is the law, then he could take advantage of his own wrong by showing that during this four years another or others had also contributed.

Such is not the law in criminal cases at common law, as will be shown hereafter; and we know no reason for greater strictness under this statute than in cases of the highest crimes known to the law. This section of the statute, we take it, is to be construed by ordinary canons of construction.

All joint tort feasors are jointly or severally liable at the election of the plaintiff. 1 Chitty’s Plead. 86; 6 Taunton, 29; 1 Wash. 187.

Counsel properly admit that where two or more act by concert in an unlawful design, each is liable for all damages, but claim if each acts independently or without the knowledge of the other, then he is only liable for his own acts. In the former case, the acts of others co-operating are his acts, because they are only in furtherance of a common unlawful design.

If there is no common intent, there can be no joint liability, but each is responsible for his own act. If there is a common intent, or if one without such intent aids one with it, in doing an unlawful act, the latter is nevertheless guilty, though not the sole cause. They claim this principle is limited to cases of conspiracy or concerted action.

In this we think they mistake the authorities. We hold that this common intent, which is sufficient to create mutual liability, may exist without previous agreement or a common understanding to do an unlawful act, and that it may be presumed to exist, when the means employed creates that presumption, as well as by proving an express agree ment.

'Wharton, in his recent work on negligence, under the head of “ causal connections,” section 144, says : “ The fact that another person contributed either before the defendant’s interposition, or concurrently with such interposition in producing the damage, is no defense.”

. So, if two trains of cars collide by mutual negligence of those operating them, they are jointly or severally liable. Colegrove v. N. Y. & N. H. R. R., 20 N. Y. 492.

To constitute parties co-wrong-doers, it is not necessary to show they acted by pre-concert, if they were intending to do the same injury, and were acting simultaneously in its accomplishment. In such case they are jointly and severally liable.

This precise question was considered in Stone v. Dickinson, 5 Allen, 29. Nine different creditors wrongfully sued out writs against their debtor; placed them in the hands of the same officer, who arrested the debtor on all the writs at the same time; each creditor being ignorant of what the other was doing; it was held they were jointly or severally liable, though there was no pre-concerted action.

Bigelow, C. J., says : “ As a matter of first impression, it would seem . . they could not be regarded as co-trespassers in the absence of proof of an intention to act together, or of knowledge that they were engaged in a common enterprise.

“ But a careful consideration of the nature of the action and of the wrong done . . will disclose the fallacy of this view of the ease.

“ The wrong which constitutes the gist of the action is that he has been unlawfully arrested. . . It is only one wrong. The error consists in supposing that the several parties . . can not be regarded as cortrespassers, because it does not appear that they acted in concert, or knowingly employed a common agent. Such pre-concert or knowledge is not essential to the commission of a joint trespass.

“It is the fact that they all united in the wrongful act, or set on foot or put in motion the agency by which it was committed that renders them, jointly liable to the person injured.”

“ The fault of a mere stranger, however much it may contribute to the injury, is no defense for one whose negligence helped to bring the accident about.” Sheannan & Eedf. on Negligence, sections 27 and 46, and cases cited.

“ Persons who co-operate in an act directly causing injury are jointly liable for its consequences, if they act in concert, or unite in causing a single injury, even though acting independently of each other.” Ib. section 58.

The same principle obtains in criminal law: “If a party be engaged in an unlawful act, and another assists him, and actually perpetrates the mischief, the first party shall be held responsible as though he had been sole perpetrator. • . Upon the same principle it is that he is responsible to the same extent, though the fatal blow be struck by another without any concert on his part.” Buts v. The State, Meigs (Tenn.), 108; 1 Bishop Crim. Law, sec. 642.

In such cases, the party charged is held liable for causing the injury, though not the sole cause.

If the defendant was using the means calculated to produce the injury, the law presumes he intended to produce it. If others, with or without concert, were concurrently co-operating with him, using like means, they were acting with the same common design, and if the injury resulted, each is liable, though each was acting without the knowledge of what the other was doing. So if the defendant alone was using such means as created this presumption of intent to do the act, and another, without concert, free from such intent, was contributing to the injury, the former is liable for all damages, notwithstanding the other also contributed.

If the defendant’s illegal sales were, under the circumstances, sufficient in quantity and frequency to cause habitual drunkenness, he is engaged in an unlawful act, and liable for the consequences, though others, without pre-concert, united in causing it. Such is the uniform rule in this class of cases.

This principle of law is so strongly supported by both reason and authority that it will hardly be questioned. Nor is it in conflict with numerous authorities in cases'of trespassing animals belonging to different owners. Separate owners are not at common law jointly liable for injuries jointly committed by their respective animals, though all happen as parts of a single transaction. In such cases each owner is liable only for the injuries committed by his own animal, because of his negligence in permitting it to run at large. This neglect is the ground of the owner’s liability. As the animals are supposed to be under the separate control of each owner, and his negligence is distinct from that of the other and not in furtherance of a common object, they can not be jointly liable, because the wrongful "neglect of each is wholly independent, and the damages are not the direct result of the act. There i.s no concurring agency of the owners in the trespass.

If, however, the separate owners of such animals keep them in common and suffer them to run at large as one herd or body, then they are jointly liable, for all damages, by the united trespasses of all or any of the animals. Jack v. Hudnall, 25 Ohio St. 255.

The fact that the amendment to this section by the Adair law, uses the words, “ in whole or in part,” is referred to as evidence that the original section was limited to intoxication “ caused in whole.” To this we answer: 1st. As already shown and admitted by counsel, joint wrongdoers were liable for each other; 2d. This clause of the Adair law was doubtless inserted to put at rest an open question, one about which there was much difficulty and difference of opinion in different parts of the state.

2. It is claimed the court erred in refusing to charge : That if Dr. Watt, at any time when he procured whisky from the defendant, represented that he wanted it for a patient he was attending, and for medicinal purposes, the jury were not authorized to find such procurement was a sale, in the absence of any other proof touching such sale.

We think there was no error in refusing this charge. If the plaintiff offered evidence tending to show a sale, which to Dr. Watt was illegal prima, facie, the burden of showing it was not rested on the defendant, and this was not shown by the mere declaration of the purchaser. The jury were told that a sale to any other person, though a delivery to an agent who was intoxicated or in the habit of becoming so, would .not be illegal if the person for whom the agent was acting was a sober man. Had the defendant shown that the whisky so procured was a sale to the doctor’s patients, he acting as their agent, he would come within this charge. His declaration that it was for his patients, even if true, did not constitute a sale to the patient, any more than his purchase of drugs to be used in his practice is necessarily a sale to his patients.

Judgment affirmed.

Scott, Chief Judge, Day and Wright, JJ., concurred.

Ashburn, J.,

dissenting. Not agreeing with my brethren as to the first, second, and third propositions, I will give my reasons.

The alleged error arises upon an instruction asked by Boyd, — refused; and the instruction given by the court in place of the one asked.

Charge asked and denied.

The defendant asked the court to charge the jury, that “ the defendant was only liable for damages to the plaintiff occasioned by intoxication produced by the intoxicating liquors which the defendant himself had sold to said Dr. Watt, and that the defendant was not liable for any damages produced by the intoxication of said Dr. Watt occasioned by intoxicating liquors sold to him during said period by other persons,” which charge the court refused to give except as qualified herein.

So much, of the charge given in place of the one overruled was:

“If you can separate the damages resulting from the intoxication caused by illegal sales to Watt by defendant from the damages resulting from sales by otherspyou must do so; but if such separation can not be made, you will render your verdict against the defendant for all the actual pecuniary damages • resulting to the plaintiff in person, property, or means of support, by-reason of the intoxication of said Joseph Watt, to which intoxication the illegal sales of intoxicating liquor by the defendant contributed. You will aAvard exemplary damages, however, against the defendant only for his own wrongful acts, and not for the wrongful acts of others.”

Defendant excepted to the entire charge and every part thereof.

The plaintiff, in her petition, alleges that her husband, Dr. Watt, died in September, 1869; that from the month of April, 1865, to about the time of his death Boyd sold him intoxicating liquors in quantities from a pint to a quart; caused him to become intoxicated, and an habitual drunkard. In consequence he neglected his business and squandered his estate. She had to provide for herself, and was injured in her means of support.

The charges in the petition are such as to lay the foundation for the assessment of the two-fold damages provided for in the statute : viz., compensatory and exemplary.

The jury returned, a verdict in favor of the plaintiff for two thousand five hundre'd dollars. Was the instruction given to the jury in lieu of the one asked and refused the law of the action ? I think not.

The action was prosecuted under the Ohio liquor law of 1854. Section 3 provides, “ that it shall be unlawful for any person ... to sell intoxicating liquors to persons intoxicated or who are in the habit of getting intoxicated.” . . .

Eor the violation of this section a person may be indicted, fined, and imprisoned.

Section 7 provides, “ That every wife . . who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, such wife . . shall have a right of action in her own name against any person who shall, by selling intoxicating liquors, contrary to this act, have caused the intoxication of such person, for all damages actually sustained as well as exemplary damages.”

The charge of the court complained of, relates only to the question of assessing “ damages actually sustained,” and not to exemplary damages. The rule as to the assessment of exemplary damages was narrow, and not calculated to injure Boyd, whilst the rule given them by which in case of difficulty they should estimate and assess actual or compensatory damages was too broad and uncertain, calculated to mislead the jury, and oppressive.

To render the defendant liable for damages under the provisions of this statute, when correctly construed, he must, under section 3, be guilty of a crime in selling intoxicating liquors to one then intoxicated, or to one in the habit of getting intoxicated. Criminal liability is the foundation for a civil liability; then, under section 7, before liability arises, there must not only be an unlawful sale to one then intoxicated, or one in the habit of getting intoxicated, but, he, by his sale of intoxicating liquor “ in violation of this act,” must have caused the intoxication, in consequence of which she sustained “ actual ” damage toller means of support. And, as the law now stands in-Ohio, his criminality for violation of section 3 must be made to appear beyond a reasonable doubt, as a basis for' civil liability in damages. Boyd’s criminality being made to appear beyond a reasonable doubt, damages may be assessed upon a preponderance of proofs. The person charged must not only be guilty of violating the criminal provision of the statute, but must be criminally responsible-to the extent that he caused the intoxication by and in consequence of which a party is damaged. The statute does not say if he shall contribute to the intoxication of a person and another is damaged thereby he shall be in some event responsible for all damages. Does it mean this ? Is that the responsibility intended by the statute ? The court answers in the affirmative. This is not the language of the statute, nor, in my opinion, is it the meaning.

To hold one person responsible for the criminal acts of another, in the absence of a statute to that effect; in the absence -of all question of conspiracy or confederation, appears to mo to be a violation of the cardinal principles of law and justice. The charge to the jury, given in this case over the -objection of Boyd, did that, unless I am mistaken in the force of the instruction given and the construction of the statute. It will not be controverted that- this statute is an ■innovation upon the common-law rights and liabilities. It is no statutory embodiment of an old right, but creates a •new cause of action and provides an unusual remedy. Such statutes, unless the intent otherwise clearly appéars ■from the statute, should be strictly construed, and limited iin their operation to the express words, when they are clear. No canon of construction authorizes the court to indulge in presumptions as to what such statutes mean. Courts are not authorized to legislate an intention into a statute. They must take it as they find it, not adding to nor subtracting from it.

Smith, in his work on statutory construction, page 830, -says : “ "When the object of the legislature is plain, and the words of the act unequivocal, courts ought to adopt such a -construction as will best effectuate the intention of the lawmakers ; but they must not, even in order to give effect to what they may suppose to be the intention of the legislature, •put upon the provisions of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the act.” This is cited as authority in the case of Woodbury v. Barry, 18 Ohio St. 456.

Chief Justice Tenterdon (6 B. & C. 475) says : •“ There is ¡always danger in giving effect to what is called the equity of the statute, and it is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to it; ” would have provided, as in the Adair law, by express words that he who causes the intoxication, in whole or in part, shall respond to all the damage caused.

Chief Justice Marshall, in The United States v. Witterberger, 5 Wheat. 76, says: “ The intention of the legislature is to be collected from the words they use. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of the words, especially in penal acts, in search of an intention which the words themselves did not suggest.” The same rule is laid down in The American Fur Co. v. The United States, 2 Pet. 358; The Commonwealth v. Loring, 8 Pick. 370. It may be said this is a civil action. True. But the damages to be assessed are in the nature of a penalty, awarded by reason of the violation of a criminal law, and should be construed strictly within the intent of the legislature as expressed in the words of the statute.

It is supposed, this clause of the Adair law. was inserted to put at rest an open question — one about which thei;e was much difficulty and difference of opinion in different parts of the state. This may be the case, or it may not. I suppose the change had a more substantial foundation. The statute of 1854 held him, and him alone, responsible in damages, who criminally violated the statute, and in doing so caused the intoxication of the person who did the damage. Caused does not mean to contribute (a partial agency), but rather to- produce a result — to be the direct occasion of a result. The law-making power should, by the courts, be presumed to know the meaning and effect of the language they use; and when they so changed the language and terms of the statute as to make the person who “ caused the intoxication, in whole or in part,” responsible for all resultant damages, they intended something more than to settle difference of opinion. They intended to remedy what appeared to them a defect in the law.

The words “ contrary to this act” were eliminated from the provisions of the amended section 7. "Why was this done ? In order that the action for damages be founded upon civil and not criminal responsibility. The legislature saw the impropriety of making a person responsible for all the damages consequent upon his causing the intoxication, “ in whole or in part,” and basing his liability upon a criminal liability of another or others, when there was no concert of action or agreement among the criminal actors. Hence, the words “ contrary to this act” were left out of the amended section.

We are not wholly without authority upon this question, growing out of the construction of statutes somewhat similar to this. I find in 1 W. L. M. 198, a case throwing some light upon the principle involved in this action. It was the case of Sawyer et al. v. Jewett et al., in the District Court of Lake county, held by such eminent judges as Ranney, Wilder, Day, and Clarke, three of whom have occupied places in the Supreme Court, and discharged their high and responsible duties with distinguished ability. It was an action for injury done to sheep by dogs. It had formerly been' considered that owners of dogs were only liable for the, actual damage done by their own dog. To remedy this supposed defect in the statute, in the amended or new statute was inserted the words “ or any of them.” Ranney, J., in the opinion of the court, says: “ The lawmakers, by the introduction of the words “ or any of them,” meant .something. What was it? They intended to make each owner liable'for all the damage done by all or any of the dogs. And with good reason. For it was found that when two or more dogs worried sheep, it was utterly impossible to trace out the injuries inflicted by each. Hence, the owners of sheep were, in many cases, remediless.”

In the case of Auchmuty v. Ham, 1 Denio, 495, it was held: “ Where dogs belonging to several owners are found in company engaged in killing sheep, each owner is responsible for the injury done by his own dog, and for no more.” In this case, the trial court instructed'the jury that the defendant was liable to pay for all the sheep of the plaintiff' which had been killed or bitten by dogs between the first of July and the first of October, 1848,” against a contrary instruction asked by defendant — “ that he was only chargeable for the injury done by his own dog,” etc. The court by Jewett, J., said: “ The court should have charged that the plaintiff' was entitled to recover of the defendant the value of the sheep.of the plaintiff which, from the evidence in the case, they were satisfied the defendant’s dog had killed or wounded; and that he was not accountable for such as Miukler’s dog had killed, nor for any damage done the plaintiff’s flock of sheep by other dogs than his own,” etc. Page 500.

"We may refine upon these authorities, and distinguish them from the principles of the case under consideration, until we are satisfied they are dead and buried, and then, like the ghost of the dead Thane, they will come up and assert their identity in principle, and boldly demand recognition. It was lawful to own dogs. The owners became responsible only when their dogs worried sheep or killed them. Under the old statute, the owner was only responsible for the actual damage done by his dog. When this could not be ascertained, the injured party was remediless. So, under this law, it is lawful for a person to sell intoxicating liquors under restrictions. He becomes responsible in damages only when he causes intoxication in violation of law. When the actual compensatory damages can not be ascertained, the injured party is remediless.

As I read this statute, in the light of the canons of construction, before this defendant can be called upon for damages, he must have caused the intoxication of Dr. Watt, by selling to him intoxicating liquors under circumstances that made him criminally responsible for such sale. This statute does not, by word or intent, contemplate that one person shall he criminally responsible for the acts of others in the absence of confederation. It may be and is otherwise as to trespassers. But in cases where the civil liability springs out of a criminal responsibility, a person, in answering for his own wrongful act, can not be lawfully held to answer, in damages, for the criminal acts of others. Yet the charge given to the jury in this case over the objection of Boyd, made him conditionally liable for the wrongful acts of others; even more, responsible for the criminal acts of, perhaps, unknown persons. The charge made this conditional liability to rest upon the, ability of the'jury, from the proofs in the action, to determine in dollars the value of the wrongful acts of Boyd. If, from a preponderance of the proofs on the question of the amount of damages sustained by Mrs. Watt, the jury were unable to determine the actual amount of damage occasioned by the wrongful act of Boyd, then, in that case, they might lawfully charge Boyd with the unnumbered sins of unnumbered persons for a series of years — from 1865 to Dr. Watt’s death in 1869. I can not think the statute will bear the construction given to it by the Court of Common Pleas. If the legislature had intended such a result, such purpose would have been more clearly expressed.

I will illustrate the practical effect of the charge given to the jury, as I understand it. A, on the 1st day of January, 1868, sold a pint of whisky to Dr. Watt, who paid for it — Mrs. Watt needed that money to buy bread; on the 10th of January, B sold brandy to Watt, and for which he paid the money, and Mrs. Watt needed that money to pay for meat to eat; on the 20th of January, 0 sold a quart of whisky to Watt, and received money in payment, and on the 80th day of January, the defendant sold Watt spirituous liquors for cash, .and Mrs. Watt needed that money to purchase raiment for herself. On each occasion Watt became intoxicated, and wasted so much of plaintiff’s means of support as he expended money in the purchase of the liquor, and loss of time while so intoxicated. Mrs. Watt prosecutes an action against the defendant for damages to her means of support. The court instructs the jury: “If you can separate the damages resulting from the intoxication caused by illegal sales to Watt by defendant from the damages resulting from the sales by A, B, and C, you must do so; but, if such separation can not be made, you will render your verdict against the defendant for all the actual pecuniary damages resulting to the plaintiff in person, property, or means of support, by reason of the intoxication of said Joseph Watt, to which intoxication the illegal sales of intoxicating liquor by defendant contributed. You will award exemplary damages, however, against defendant only for his own wrongful acts, and not for the wrongful acts of A, B, and C.” If the charge does not mean this, then I am unable to discover its meaning. If a charge is so uncertain that it is likely to mislead the jury, the judgment should be reversed.

It is claimed that the case of Henry D. Stone v. William Dickinson, 5 Allen, 29, supports the views taken by the majority of the court. I am of a different opinion. In that case, nine writs for the arrest of plaintiff were sued out by nine different persons, who, separately and without concert, and, without knowing.they were using the same agent, placed them in the hands of the same person, and caused plaintiff to be arrested. The plaintiff brought several suits for compensation. The court held that having used a common agent, and made but a single arrest, they were joint trespassers, and a satisfaction from one of them was a bar to an action against the other joint trespassers. The court assimilated the case to a common-law joint action for trespass. The reasons of the court for doing so may or may not be sound. How would the case have stood if the agent who made the single arrest under all the writs had, at distinct hours of the day, or on different days, arrested the plaintiff? Would the several arrests have been a joint trespass ? Certainly not. The judge puts the ■ case upon the fact: “ It is only one wrong, for which in law he can receive but one compensation. He has not in fact suffered nine separate arrests, and undergone nine separate imprisonments,” etc. This case will only be analogous to the one tinder consideration when it shall occur that nine separate liquor venders shall put nine parcels of intoxicating liquors into the hands of an agent, but without concert of action or knowledge that they are employing the same person, and shall cause the nine parcels of liquor to produce a single case of intoxication, from which damages arise, and the common agent by so doing is rendering each of his principals liable to a criminal prosecution.

This charge is erroneous in another respect. Two distinct rules were given to the jury for the assessment of damages. They were told in a certain contingency, when assessing “ actual pecuniary damages,” to look to the wrongful acts of defendant and others, and from them, in the aggregate, determine the plaintiffs damages to her means of support; but when the jury come to assess exemplary damages, they could look only to the defendant’s wrongful acts, and not the wrongful acts of others. This rule for assessing exemplary damages is sound law, but it serves to show the error in the other part of the charge. To me the doctriue is strange that the field of facts from which compensatory damages in a given case can be collected is broader than that from which punitive damages may arise.  