
    James T. Davis v. Martha Justice.
    In an action under the act of April 18, 1870 (67 Ohio D. 101), for injury to means of support in consequence of intoxication which caused the-death of the intoxicated person, damages resulting from the death can. not he recovered.
    Error reserved in the District Court of Lawrence county.
    The original action was brought by Martha Justice against James T. Davis and others, under the act of 1854,. as amended in 1870, providing against the evils resulting from the sale of intoxicating liquors, to recover for injury to her means of support in consequeuce of the intoxication of her husband, Benjamin Justice.
    The intoxication of her husband was caused by liquor unlawfully sold by the co-defendants of Davis, to be drank on the premises where sold, of which Davis was the owner. Davis was charged with knowledge of the unlawful sales.
    The intoxication was produced on the 15th of December, 1871, and, by reason of such intoxication, the plaintiff's husband, on the same day, was instantly killed by a train of ears upon the track of the Iron Railroad Company.
    The plaintiff’s husband was a teamster, and the plaintiff was dependent upon his earnings for her support.
    In the court of common pleas, the' plaintiff recovered $8,000.
    To reverse this judgment, the plaintiff in error, Davis, filed a petition in error in the district court, and the cause has been reserved for decision in this court.
    
      W. W. Johnson, with whom was John Hamilton, for. plaintiff in error:
    We claim:
    1. That the act of 1870 (67 Ohio L. 101) does not authorize the recovery of damages or compensation for death.
    
      2. That no action lies for such damages except under the act “requiring compensation for causing death by wrong ful act, neglect, or default.” 2 S. & C. 1139, 1140.
    I. At common law no action could be maintained for in jury causing death. 3 Blackstoue Com. 119, 219, and notes; 4 Blackstoue Com. 6, and notes; Broom’s Legal Maxims, 706; Sedgwick on Dam. 550, 551; Shearman ■& Redf. on Nog., chap. 17, p. 332; 1 Hilliard on Torts, 93, sec. 10.
    And to give such right of action there must be express statutoiy authority. Canning v. Williamstown, 1 Cush. 451; 9 Cush.. 109 •; Whitford v. Railroad, 23 N. Y. 468, 475 ; Stacy $ Worley v. Railroad, 1 Handy, 481.
    The first innovation of this common law rule, was the act of parliament 9th and 10th Viet., ch. 93, commonly ■called “ Lord Campbell’s Act,” and is in terms similar to our statute, giving compensation for death. 2 S. & C. 1139.
    The preamble is conclusive as to .the rule. It l'eads: ■“ Whereas, no action at law is. now maintainable against a person who, by his wrongful act, neglect, or default, may have caused the death of another,” etc. Shearman & Redf. ■on Neg. 332.
    II. Does the 7th section, as amended in 1870, of the liquor act, give such right of action ?
    If it has been established b3r the cases cited that it requires express statutory authority to give such an action, this is the only remaining question.
    In determining this question certain principles of construction must be observed.
    1. Statutes in pari materia must be taken together and construed as if one law. Sedgwick Stat. Const. 247; 1 Kent Com. 463; Him v. The State, 1 Ohio St. 20.
    2. Repeals by implication are not favored.
    Two or more laws must be so construed as that both can stand unless they are clearly repugnant, where both relate to the same general subject.
    
      
      “ The repugnancy must be clear, and so contrary that they can not be reconciled.”
    “ If by any course of reasoning they can be reconciled, both mast stand.” The State v. Dudley, 1 Ohio St. 437, 441; Cass v. Dillon, 2 Ohio St. 610, 611; Dudlow v. Johnston, 3 Ohio, 553; Dodge v. Gridley, 10 Ohio, 178.
    3. Statutes in derogation of the common law, which create new rights of action not before existing, must be strictly ■construed. Sedgwick on Stat. Const. 313, and cases cited.
    The Supreme Court of Ohio, in Schneider v. Hosier, 21 Ohio' St. 110, concedes that this rule is applicable to this ■statute.
    4. That, the legislature of Ohio in 1851, following the example of Great. Britain, and most of the states, passed an act expressly giving such action, which is in full force aud unrepealed. We claim that this statute is exclusively the remedy.
    III. The express terms of section 7 limit the damages so ■as to exclude damages for causing death.
    IV. Section 7 gives this action to the wife, not the widow; and hence the plaiutiff must, at the time the cause of action accrued,, have been the wife of Benjamin Justice.
    
      A. B. Cole, for defendant in error,
    claimed that the action was properly brought under the act of 1870 (67 Ohio L. 102,) •and cited; Ford v. Monroe, 20 Weud. 210; Sullivan v. JRailroad, 1 Central Law Jour. 595.
   McIlvaine, J.

-The principal question in this case is, whether the means of support of a wife, who was dependent upon her husband’s labor, is, within the meaning of the statute, injured by the death of the husband caused by intoxication ?

The statute reads as follows :

“Section 7. That every husband, wife, child, parent, guardian, employer, or other person who shall he 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, child, parent, guardian, employer, or other’ person, shall have a right of action in his or her otvn name, severally or jointly, against any person or persons, who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons; and the owner of, lessee, or person or persons renting or leasing any building or premises, having knowledge that intoxicating liquors are to be sold therein in violation of law, or having leased the same'for other purposes, shall knowingly permit intoxicating liquors to be so sold in such building or premises, that have caused the intoxication, in whole or in part, of such person or persons, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained, as well as exemplary damages; and a married woman shall have the same right to bring suits, and control the same, and the amount recovered, the same as a feme sole.”

Ry the common law, it is clearly settled that actions for personal injuries abate by death, and can not be revived or maintained by the executor or by the heir. And if the law does not afford a remedy to the creditor or the heir, for a pecuniary injury resulting from death, it is difficult to perceive a reason why a remedy should be allowed to one sustaining any other relation to the deceased.

In Baker v. Bolton, 1 Campbell, 493—an action for injuries to the plaintiff'aud his wife from which she had died—Lord Ellenborough said : “ The jury could only take into consideration the bruises which the plaintiff himself had sustained, and the loss of his wife’s society and the distress óf mind he had suffered on her account from the time of the accident till the moment of her dissolution. In a civil court, the death of a human being could not be complained of as an injury ; and in this case the damages as to the plaintiff’s wife must stop with the period of her existence.”

In support, of the doctrine thus laid down by this eminent common law jurist, it may be said that, previous thereto, the books of the common law show no instance in which such damages were claimed, and this decision re'-' mained unquestioned in England until the year 1873, when the doctrine was reaffirmed in Osborne v. Gillett, 8 Law Reports, Exch. Cases, which was an action by a master for an injury which caused the death of his servant.

In this country, the question has been brought more frequently before the courts, and although the decisions have not been entirely uniform, unquestionably, both in number and authority, they sustain the doctrine of Baker v. Bolton. The latest case in which the authorities are Reviewed, is Mobile Life Ins. Co. v. Brame, decided by the Supreme Court of the United States, on the 21st of January, 1878, and reported in 95 U. S. Rep. 754, in which- Hunt, J., uses the following language : “ The authorities are so numerous and so uniform to the proposition, that by the common law no civil action lies for an injury resulting in death, that it is impossible to speak of it as a proposition open to question.”

In this state, the point has not been adjudicated; but we think the doctrine has been recognized by the legislature in the enactment of March 28, 1851 (49 Ohio L. 117), entitled “ an act requiring compensation for causing death by wrongful act, neglect, or default,” by which, under certain conditions and limitations, an action is given to the-personal representative for the benefit of the widow and next of kin of the deceased. Before the passage of this-statute, an action for pecuniary loss, resulting from the death of a human being, was unknown in our practice, and ever since, the only suits for such loss have been prosecuted under its provision. This statute has always been regarded as an innovation upon the principles of the common law,, and as affording the only civil remedy for an injury caused by death.

The seventh section of the liquor act, above quoted, was-also an innovation upon the common law; as, before its enactment, there was no action for an injury caused by an intoxicated person, or in consequence of the intoxication,, against the person who caused the intoxication. But since. the action is thus given by the statute, the question is, whether, in view of the state of the law as it existed at the date of its passage, the terms of the section should be so construed as to extend the remedy to damages resulting from the death of the person intoxicated?

Injuries “ by any intoxicated person, or in consequence of the intoxication,” are the terms of the statute; and it is contended that if intoxication causes death, and death causes injury, the latter is within the meaning of the act. On the other hand it is contended, that as the legislature must be presumed to have known the state of the common law, and the extent of the innovation by the act of 1851, if a further innovation had been intended, such intention would have been expressed in unmistakable terms. We incline to the latter view.

Indeed, where the injury to be compensated consists in the loss of labor, it is at least paradoxical to say that labor which could not be performed during the life of the laborer is included. And, again, in construing the words of the statute applicable to the case before us, it might be said that the action can be maintained only for an injury to means of support of the plaintiff, as wife of the person intoxicated, and not for an injury sustained by her as his widow. She had an interest in his labor and in his capacity to labor, as a means of support, during his life; but after his death this means of support no louger existed, and was not the subject of injury or diminution.

But to avoid any charge of hypereriticism, we place our decision upon the ground that in view of the previous state -of the law, and the mischief sought to be remedied, we can find no expression in the statute that indicates an intention on the part of the legislature to bring the loss of labor caused by the death of the person intoxicated within' the meaning of the term “ means of support,” for an injury to which the right of action is given by the statute.

The uncertainty, if not impossibility, of estimating the value of human life, or, in other words, the pecuniary injury resulting from its destruction, undoubtedly was a reason why the common law gave no remedy. Hence, in every instance in which a remedy has been given by the statute, great care has been exercised in guarding against abuse. Our own statute of 1851, like those of other states where the common law is recognized, imposes restrictions on the right to sue, limits the amount of recovery, designates the party in whose name the action must be prosecuted, and directs the disposition of the amount recovered among the intended beneficiaries. These conditions and limitations, are not only manifestations of legislative wisdom,but would seem to be demanded by common prudence; whereas, in the statute before ns, these wise and prudent precautions are wholly wanting. Under it, a multiplicity of actions for the same wrong is authorized, and the amount of recovery is unlimited. "When the terms of the statute under consideration are considered in the light of these circumstances, we are fully satisfied that the legislature did not intend to give the plaintiff' below an action for an injury resulting-from the death of her husband.

Judgment reversed arid cause remanded.

Boynton, J.

I dissent from the judgment of the court. The construction given to the statute, in my judgment, violates both its letter and its spirit. It violates its letter in disregarding the plain meaning of the language which declares that in all actions brought under its provisions, the offending' party shall be liable “for all damages sustained, as well as exemplary damages.” That it violates its spirit, is clearly mauifest from an examination of its various provisions, and their consideration in the light of the evils sought to be avoided by their enactment.

By section 6 (S. & C. 1432), it is provided that every person, who, by the illegal sale of intoxicating liquor, shall cause the intoxication of any other person, such person shall be liable for and compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, and one dollar a day in addition thereto; and this liability covers the period the person intoxicated is kept in consequence of such intoxication.

By section 7, as amended in 1870 (67 Ohio L. 102), the civil liability attaches where the liquor unlawfully sold causes the intoxication only in part.

By section 10, amended by the same act, the exemptions of property, from levy and sale, both real and personal, provided for by the “ act to exempt the homestead of families from forced sale on execution to pay debts ” (S. & 0. 1145 ; G6 Ohio L. 48 ; 68 Ohio L. 106), are expressly withheld and disallowed, and all the estate of the debtor, except a few specified articles of personalty,'is liable for the payment of the judgment. Neither a homestead nor any property in lieu thereof is exempt from levy or sale to satisfy any judgment rendered under the statute.

These provisions clearly indicate a purpose on the part of the legislature to require the seller, and the owner of the premises when liable, to make full and adequate compensation in damages, to the par’ty injured through their violation of the statute. In full accord with this purpose, and to carry, the same into effect, this court held in Schneidar v. Hosier, 21 Ohio St. 98, that in all actions under said section (7), in which the plaintiff shows a right to recover damages actually sustained, the jury may also assess exemplary damages without proof of actual’malice or other special circumstances of aggravation. ’

This holding was soon followed by Mulford v. Clewell, Ib. 191, in which it was held, that “ means of support relate to the future as well as to the present. It is enough if she (the wife) show that the sources of her future support have been cut off, or diminished below what is reasonable and competent for a person in her station in life. . . . The health of the husband and his ability to labor are often, to a greater or less extent, the means of the wife’s support. In many cases to destroy these is to destroy her means of support. To take away the husband’s power to accumulate means of future support for his wife, is, within the meaning of-the law, to injure her in her means of support.”

It is now said, in the face of these provisions and of this ruling, and notwithstanding the emphatic language of the statute that makes the seller liable for all damages sustained through his wrongful act, that inasmuch as the husband lost his life in consequence of the intoxication no recovery can be had. The very fiagrancy of the seller’s act, judged by the light of the consequences that resulted from it, is made to shield him from liability. The ai’gument in support of this position is founded on the assumption, that had the legislature intended a liability to arise where the unlawful sale resulted in death, it would have expressed such intention in terms more, unmistakable than those employed ; and on the further assumption that the act of March 25, 1851 (S. & C. 1139), giving a right of action where death has resulted from the wrongful act, neglect, or default of another, affords, and was intended to afford, the only remedy provided for all cases where death ensues. The answer to these positions is decisive against their validity.

It is a rule of interpretation universally accepted, that in giving a construction to a statute the court will consider its policy and the mischief to be remedied, and give it such an interpretation as appears best calculated to advance its object by effectuating the design of the legislature. Wilber v. Paine, 1 Ohio, 255. It is equally well settled that where the legislature has employed explicit and unambiguous terms to express its purpose and object, the ordinary meaning of such terms is to be adopted. Gardner v. Collins, 2 Peters, 93.

In Brower v. Hunt, 18 Ohio St. 341, it wms said, adopting the language of Story, J., in Gardner v. Collins, that, “what the legislative intention was can be derived only from the words they have used, and we can not speculate beyond the reasonable import of their words. The spirit of the act must be extracted from the words of the act, and not from conjectures, aliunde.”

It is not doubted that cases frequently arise, where, to give effect to the manifest intention of the legislature, it becomes the duty of the court to modify, restrict, or enlarge the common or ordinary meaning of the language employed. This duty arises when it is made to appear, that, to give effect to the ordinary meaning of the language used, will not carry into> operation the legislative will. But a departure from the .rule requiring an adherence to the ordinary signification of the terms employed, can only be justified where it becomes necessary to restrain or enlarge such meaning in order to carry out the manifest design of .the statute.

“Where tjhe intention of the. legislature is doubtful, the literal and obvious • interpretation of the terms of the. statute ought to be adhered to.” Burgett’s Adm’rs v. Burgett, 1 Ohio, 469. In Corwin’s Lessee v. Benham, 2 Ohio St. 43, it was said by Ranney, J., “ that the usual import of words is. sometimes to be restricted, where it would otherwise extend beyond the subject-matter and spirit of the whole enactment. But this can not be done because the legisláture did not foresee or contemplate every case upon which it might operate. The wisest legislators would fall far short of such foresight. If within the language,it must appear clearly to the court that the ease would have been excluded if foreseen.” And in Woodbury v. Berry, 18 Ohio St. 456, in language equally clear and emphatic, it is declared that, “where the words of a statute'are plain, explicit, and unequivocal, a court is not warranted in. departing from their obvious meaning, although from considerations arising from language outside of the statute, it may be convinced.that the legislature intended to enact something different from what it did enact.” In the present case, the right of Mrs. Justice to recover all damages she sustained by the wrongful act of the plaintiff in error, whether such act- caused the death of her husband or not, is not only clearly given by the language employed, but such language, in its ordinary meaning, is clearly expressive of the design Of the legislature, and is in complete and perfect harmony with the spirit aud policy of the statute.

The correctness'of this interpretation is not at all affected by the act of 1851.. That act affords no relief, and was intended to furnish none in this' class of actions. To have amended that act, so as to embrace actions of this kind, •would have been an innovation upon its policy, and a departure from the principles upon -which it is founded. It: is indispensable to the right to recover under that act, that the deceased himself should have been free from fault contributing to his injury. The act, neglect, or default must, have been such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages iu respect thereof. (S. & C. 1140.) A moment’s reflection, will satisfy the mind that no recovery could be had in such case for an injury resulting from an illegal sale of int-oxicating'liquor.

A person injured while in a state of intoxication voluntarily assumed, will not be permitted in a court of justice-to recover damages for an injury that his own voluntary-act brought upon him. And where he could not recover, no liability arises. There is, therefore, no foundation for the argument, that, if a recovery could be had under the act of 1854, as amended in 1870, there would be two statutory rights of action for the same cause.

But even if this were so, it would not justify the conclusion claimed.- The 7th sectiou of the act of 1854, as amended in 1870, gives several rights of action for the same cause.. The wife and each child, if severally injured in their person, property, or means of support, by the. intoxication caused by the seller, may maintain several actions for the-same unlawful act. If a person while intoxicated injures, fifty men, each of them may maintain an act against the person whose unlawful sale of liquor caused the intoxication. In such case the statute makes the seller a joint, wrong-doer, as much so as if he were present aiding and. abetting the unlawful act of the person intoxicated.

The argument of counsel for the plaintiff and the judgment of the court seem to be founded on the mistaken notion that the action is brought to recover damages for the death of the husband. Such is not the case. The-wrongful act which constitutes the ground of the action, is the illegal sale of the liquor causing the intoxication from, which the injury results. The death of the husband only affects the measure of damages. It destroys his ability to labor, and thereby diminishes the wife’s means of support. If the husband had lost both his arms or legs, or become permanently insane, in consequence of the intoxication, or had otherwise become permanently disabled, to perform physical labor, and had survived, the result to the wife would have been precisely the same. Her injury, in either case, would consist in the deprivation of the means of support resulting from the loss of her husband’s ability to labor. There is not the slightest foundation in reason or justice for an intention upon the part of the legislature to .authorize a recovery for au illegal sale causing intoxication resulting in injury, where death does not follow, and to refuse damages where death results. Indeed, there is much more reason to award damages for the injury in the latter ■case than, in the former. That the legislature intended to authorize a recovery in the one case and notin the other is an assumption not only not warranted by, but in clear contravention of the express provisions of the statute. The argument ■that the wife has lost nothing, because a dead man can not labor, proves nothing. Neither can a man labor that has lost his limbs. Moreover, it would be strange, indeed, if he ■whose unlawful act caused the death of another, could urge the fact in defense, that the circumstance of death destroyed .all ability to labor, and consequently operated to exempt hirn from a liability otherwise existing.

The reason that, at common law, no recovery could be had for death caused by a wrongful act, did not, as stated, .grow out of any difficulty in ascertaining the amount that ought to be recovered. It rested upon the ground that the ■act producing death was a felony which merged the civil liability. That this was the reason why the common law recognized no liability where death thus resulted, is clearly ■shown by the authorities. Howk v. Minnick, 19 Ohio St. 462; Boston and Worcester Ry. v. Dana, 1 Gray, 96; Higgins v. Butcher, Yelv. 89; White v. Pettigue, 13 M. & W. 603; 1 Chitty Cr. Law, 5; 12 East, 413.

This reason does not prevail with us,- nor in many, if any, of the American states. But it matters little, one ■way or the other, what the common law rule may be, or upon what foundation it rests, the statute under which the action below was brought declares the party injured entitled to all damages sustained, as well as exemplary, which result from the illegal act of the seller, and very clearly, in my judgment, embraces all those that follow from the intoxication, whether death supervenes or not. The judgment ought to be affirmed.  