
    Orin S. Bacon, Jr., Resp’t, v. Albert Jacobs et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    1. Civil damage act—Charge.
    In an action under the civil damage act it is not error for the court to refuse to charge that the acts of the defendant must be proved to be the proximate cause of the injury, or the plaintiff cannot recover. It is the intoxication which must be shown to be the proximate cause; the furnishing of the liquor is but the remote cause.
    3. Same—Assault.
    The statute imposes an absolute liability for wrongs perpetrated by a person while intoxicated, where the intoxication was caused in whole or in part by the defendant, and precludes inquiry into the further question whether the injuries would have been inflicted except for such intoxicacation; and hence it is not error to refuse to charge that if the assault in question was committed on amount of an old feud, and not on account of ■the aggressor’s intoxication, plaintiff could not recover.
    
      Appeal by the defendants from a judgment entered in Ontario «county, March 3, 1890, and from an order, dated December 6, 1890, denying their motion for a new trial upon a case and exceptions.
    
      John Van Vo or his, for app’lts; Frank Bice, for resp’t.
   Macomber, J.

A recovery óf a verdict in the sum of $2,750 -was had at the circuit in this action, which was brought under chap. 616 of the Laws of 1873, commonly known as the Civil Damage Act.

The defendant, Jacobs, was the owner of a hotel in the village of Victor, 1ST. Y., but had nothing to do with the management of the business thereof. The defendant, Burns, was the lessee of the hotel and carried on the general business of a licensed hotel and inn keeper. The charge against both is that on the 5th day of February, 1889, the defendant Burns furnished to one Gilroy intoxicating liquors which produced his intoxication, and that Gilroy, when in that condition, produced in whole or in part by the liquor obtained at the defendant’s hotel, assaulted the plaintiff, «doing him serious bodily harm. Evidence was adduced at the trial sufficient to warrant the jury in finding that Gilroy was in fact intoxicated at the time he committed the assault upon the plaintiff, and that such intoxication was, partially at least, produced by the liquor obtained by him at the hotel kept by the defendant Burns.

The learned counsel for the appellant, in his argument in favor of a reversal of the judgment and order, mainly relies upon •certain exceptions taken at the trial, two of which merit serious consideration. The case shows that he requested the court to charge the jury that the acts of the defendants, or one of them, must be proved to be the proximate cause of the injury, or the plaintiff cannot recover. The court refused so to charge, and the defendants excepted. Counsel relies largely upon the case of Davis v. Standish, 26 Hun, 608, as an authority to show that such refusal of the judge at the circuit was an error. But we do not so understand that authority. The request made in this case was, not that the intoxication must be proved to be the approximate cause of the injury sustained by the plaintiff. If that proposition had been made and refused, a most grave question would have arisen of very doubtful solution. The acts of the defendants, or the acts of either of them, cannot be said to be the proximate cause of the assault made upon the plaintiff by Gilroy. Furnishing liquor to Gilroy was but a remote cause of such injuries. The intoxication of Gilroy was the proximate cause, so far as this question is involved, for it was that cause which immediately preceded and directly produced the effect complained of, and is to be distinguished from any remote, mediate or disposing cause.

There is indeed much in the discussion contained in the opinion above cited which goes to show, at least inferentially, that it is incumbent upon the plaintiff, in an action of this character, to prove that the injuries sustained were produced by the intoxicatian of a person, and that such intoxication was the proximate cause thereof. See Beers v. Walhizer, 43 Hun, 254; 4 St. Rep., 377. The question here raised by counsel, if of the precise-nature which he claims it'to be, could be more nearly allied to-the next question which we proceed to consider, and which is far from being free from doubt or embarrassment.

The other exception arose as follows: Counsel for the defendants at the trial requested the court to charge the jury that if Gilroy was intoxicated, or partly so, and committed the assault, not on account of his intoxication, but on account of an old feud that, he and the plaintiff had between them, the plaintiff could not recover. The court refused so to charge, to which refusal an exception was taken.

The evidence establishes, with some degree of conclusiveness,, that there did exist, before the time of the assault, a condition of-serious ill feeling between the plaintiff and Gilroy. The plaintiff" testified that Gilroy came to his shop on the day in question, and; wanted to know what nlaintiff had against him. Plaintiff says-that he told him that íie. had nothing against him. Gilroy accused him of talking badly about him. Plaintiff told him to-leave the shop or he would have him arrested. On cross-examinatian, the plaintiff testified that three or four times previous to the-trial he had caused Gilroy’s arrest, by lodging a complaint against him for being drunk and disorderly, upon which charge Gilroy was convicted and sent to the penitentiary or jail. After further testifying that he had reason to believe that Gilroy would come over to his shop, the plaintiff proceeds as follows, in his version, of an interview between him and the defendant Burns: “ He, Burns, asked me if he, Gilroy, should come over there and pitch into me, what I would do.

“ Q. Did you have any reason to believe that he would come over there? A. Yes, sir; I had reason to believe so.
“Q. Did he come in there frequently when he was drunk?' A. Yes, sir; oftentimes.”

The plaintiff also testified that Gilroy when sober was a mild-mannered and inoffensive man, and that he, the plaintiff, had no-apprehension of him except when intoxicated.

The defendant Burns testified that while walking by the plaintiff’s shop the latter spoke to him and wanted to know if that, long-legged (giving a vulgar name) was over to his house. “I says, who?’and he says, ‘that long-legged Gilroy,’and I says,. ‘ he wasn’t there when I came away;’ and he said, he has been over here raising the devil, and if he comes in again I will split him with a cleaver.’”

This evidence was of a character to enable the jury, if it had been permitted by the court, to say that the bitter feelings existing between the plaintiff and Gilroy were of a permanent character; liable at any time to lead to an open assault by Gilroy upon the plaintiff, irrespective of the state of intoxication of Gilroy. Wesav there is evidence pointing in that direction, but do not mean to be understood as saying that it establishes such, proposition.

The question, therefore, presented by this exception is, whether, ■under these circumstances, it was error for the court to refuse to •charge in accordance with the request made by the counsel for the defendants. Were it a question to be determined by the rules ■of the common law, but one answer could be made to it, and that is that such ruling was error. But under the rigid, not to say .harsh, provisions of the statute, we think, on the whole, that the •decision of the learned judge at the circuit maybe sustained. This statute, as has been repeatedly said, gives a cause of action where none existed at common law or by statute before its enactment, and renders persons liable to suit in damages where the principles of the common law do not. Volans v. Owen, 74 N. Y., 526; Bertholf v. O'Reilly, id., 509; Mead v. Stratton, 87 id., 493; Reid v. Terwilliger, 116 id., 530; 27 St. Rep., 563.

That portion of the statute material to this inquiry is as follows: “Every husband, wife, child, parent, guardian, employer, or other person 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, shall have a right of action in his or her name against any person, or persons, who shall by selling or giving away any intoxicating liquors caused (sic) the intoxication, in whole or in part, of such person or persons,” etc.

This statute seems to render any person absolutely liable for the wrongs perpetrated by a person while intoxicated, when the intoxication was caused in whole or in part by the defendant, and precludes an examination into the further question whether or not, except for such intoxication, the injuries would have been inflicted. The plaintiff was injured in his person by Gilroy while the latter was intoxicated. The expression is “ by any intoxicated person,” apparently closing all inquiry into the question whether, in the instance now before us, Gilroy would have committed the assault except for the intoxication.

The courts of this state have upheld the constitutionality of •this law, and have steadily enforced its provisions with great uniformity of decision. It has now been on our' statute book ■for nearly twenty years, and we are not disposed to say that this particular provision, now, for the first time, so far as we are aware, ■directly involved, is in contravention of the organic law of the state.

In Neu v. McKechnie, 95 N. Y., 632, which was an action by a child to recover damages for the loss of means of support where the intoxicated person, his father, had, after killing his wife, committed suicide, it is stated in the opinion that the jury were not to inquire whether either the homicide or the suicide was the natural, reasonable or probable consequence of the defendant’s net, and then proceeds as follows: “ It is enough if while intoxicated, in whole or in part by liquors sold by the defendants, those acts were committed.”

On the whole, on account of the expressions contained in the opinion in the- above cited case, we think the judgment appealed from should be affirmed.

Lewis, J., concurs; Dwight, P. J., taking no part.  