
    Comstock v. Hopkins et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    October, 1891.)
    Intoxicating Liquors—Divil Damage—Satisfaction as to One Wrong-Doer.
    The common-law rule, that satisfaction as to one joint wrong-doer is satisfaction as to all, applies in an action under the civil damage law for the death of a son resulting from intoxication produced in part by liquor sold him by defendant.
    Appeal from circuit court, Wayne county.
    Action by Keuben Comstock against John II. Hopkins and others for damages resulting from the death of plaintiff’s son while intoxicated by liquor sold him by defendant. From a judgment of nonsuit plaintiff appeals.
    
      C. H. Ray, for appellant. J. H. Camp, for respondent.
   Dwight, P. J.

The action was under the civil damage law to recover for loss and damage resulting to the plaintiff from the death of his son, caused, as alleged, by the intoxication of the latter, produced in part by liquor sold to him by the defendants. The one question of interest in the case is whether the several persons against whom a cause of action exists, under this act, for one and the same injury, are within the principle of the common-law rule which prescribes that satisfaction as to one joint wrong-doer is satisfaction as to all. The rule is abundantly established, as to joint wrong-doers, and rests upon the principle that, as there can be no apportionment of responsibility between them, each must be held responsible, for all, and hence satisfaction by one is satisfaction for all. Bronson v. Fitzhugh, 1 Hill, 186; Woods v. Pangburn, 75 N. Y. 498. The question, above propounded, whether this rule applies to the case of persons equally, and no doubt jointly, liable under the civil damage law, is, so far as we know, a new question in this state. In Massachusetts and Iowa, under similar statutes, it has been held that the common-law rule does so apply. Aldrich v. Parnell, 147 Mass. 409, 18 N. E. Rep. 170; Kearney v. Fitzgerald, 43 Iowa, 580. The reasoning of these cases commends itself to our judgment, although we are of the opinion that the conclusion reached does not depend upon the principle that the persons so jointly liable for the injury complained of are joint wrong-doers. It is difficult to see how a man who does only that which he is expressly licensed to do under one statute of the state can be treated, for that act, as a wrong-doer by or under another statute of the state. Certainly what he has done is not in violation of any law of the state, civil or criminal, and we have had occasion to hold that the liability which he has thereby incurred is not in the nature of a penalty. Hall v. Germain, (Sup.) 14 N. Y. Supp. 5. The two statutes referred to are in pari materia; the object of both is to restrain the traffic in intoxicating liquor; and they may be read together. When so read, it will be seen that the civil damage law imposes a condition upon which a license to sell liquor is granted under the excise law, viz., the condition of liability in damages for injuries toothers resulting from such sale. It is true that the unlicensed dealer is a wrong-doer, both civilly and criminally, liable both to penalty and to fine and imprisonment; but the civil damage law applies with equal force to the licensed as to the unlicensed dealer, and therefore it cannot well be said that the liability imposed by it is the liability of wrong-doers. But it is not necessary that the persons liable to such an action as this should be wrong-doers in order to give application to the rule that satisfaction by one is satisfaction as to all. On the contrary, we think the rule has application to both classes of cases upon a principle which is common to both, viz., that there can be no apportionment of damages between, the persons liable. So it is with joint wrong-doers from, the nature of the case, and so it is with persons liable under the statute in question from the very terms of the statute, which impose an undivided liability upon any person or persons whose sale or giving away of liquor has caused the intoxication, in whole or in part, from which the injury complained of has resulted. No doubt in this case, as in that of joint wrong-doers, the person injured would have had his action against all the persons liable, either jointly or separately; but no cause of action against any would have survived satisfaction by either of the claim against him. An examination of the evidence satisfies us that there was no question for the jury as to the fact of a settlement by the plaintiff witli the defendants in another action, previously brought by him, under the same statute, for the same cause of action, viz., the loss sustained by him in the death of his son. Eor the reasons stated, we are of the opinion that the nonsuit was properly granted, and that the judgment must be affirmed.

All concur.  