
    Rantz v. Barnes
    In an action by a wife, under the seventh section of the act of May 1,1854, to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18, 1870, against two persons for injury to her means of support resulting from the habitual intoxication of her husband, caused by intoxicating liquors sold and furnished him by the defendants, and where, from the facts found, it appears that the defendants each sold intoxicating liquors to the husband, and that they were in no way connected in business, and that neither of them was in any way interested in the sales made by the other; but that the husband of the plaintiff, during the time in which the sales were made, was habitually intoxicated, and that the sales were made by both defendants with knowledge of this fact, and the sales thus made contributed to keep up said habit. Held, That the defendants are jointly liable.
    Error. Reserved in the District Court of Hamilton County.
    Martha A. Barnes, the wife of Abraham F. Barnes, brought an action in the court of common pleas of Hamilton county, against John Rantz and Jacob Westerman, on November 24th, 1872. In her petition she alleges that from about the first day of January, 1869, until the commencement of the action the defendants sold intoxicating liquors to Abraham F. Barnes, her husband, to be drank on the premises where sold, knowing at the same time that the said Abraham F. Barnes was a person in the habit of getting intoxicated, and that the liquor they so sold equally contributed to make the said Abraham F. Barnes intoxicated.
    After verdict, on the suggestion of the court the plaintiff filed an amendment to her petition and alleged: That the liquor so sold contributed to make the said Abrabam F. Barnes intoxicated, and confirmed, contributed to and augmented said habit of intoxication.
    A verdict was returned' for the plaintiff for $1,500. A motion for a new trial was overruled and a bill of exceptions taken embodying all the evidence. A petition in error was afterwards filed in the district court, assigning among other errors that the verdict was not sustained by sufficient evidence, and was contrary to law.
    The district court in 1879, under the 9th section of the first chapter of Title IV. of the Code of Civil Procedure, passed May 14th, 1878, (75 O. L., 805), made and embodied in the record a finding of the facts, and then reserved the case for decision here. The finding of the facts is as follows:
    “ That from and after the first day of January, A. D. 1869, till the 24th day of October, Á. D. 1872, the time of the filing of the petition of said Martha Ann Barnes, in the court below, each of said plaintiffs in error, John Rantz and Jacob Westerman, kept a coffee-house and drinking-saloon in Hamilton county, Ohio, said coffee-houses and drinkingsaloqns being at a distance of more than a mile from each •other; but, that at no time during the said period, were the said John Rantz and Jacob Westerman partners in keeping either of said coffee-houses and drinking-saloons, nor were they in any way connected in business, nor was either in any way interested in the coffee-house and drinking-saloon kept by the other; that on several occasions during said period, said John Rantz unlawfully sold intoxicating liquors to Abraham F.. Barnes, the husband of said Martha Ann Barnes, whereby he became intoxicated, and that said Jacob • Westerman, on several other occasions during said period, also sold intoxicating liquors to said Abraham F. Barnes, whereby he became intoxicated; but that said Jacob Westerman had no knowledge of or connection with said sales of intoxicating liquors of said John Rantz, and that said John Rantz had no knowledge of or connection with said sales of intoxicating liquors of said Jacob Westerman; and that the sales of either were in no wise induced or caused by tbe other of said plaintiffs in error, and that said John Rantz and Jacob Westerman, in making said unlawful sales of intoxicating liquors, did not, in any manner, act in. concert; that the evidence did not show that intoxicating liquors sold by either of said plaintiffs in error, contributed to a particular state of intoxication caused by intoxicating liquor sold by the other; but, that the husband of said defendant in error was habitually intoxicated, and that said sales of intoxicating liquors made by plaintiff in error were with knowledge of this fact, and contributed to keep up said habit; that said John Rantz when remonstrated with by the defendant in error in regard to selling liquor to her husband, spoke to her harshly and indecently, and did not desist from selling; but of this Jacob Westerman had no knowledge, and he had in no way caused or induced such conduct.”
    
      Stallo, Kittredge f Shoemaker, for plaintiff in error,
    cited Kirchner v. Myers, 35 Ohio St., 85; 'La France v. Kragers, 42 Iowa, 143; Jewett v. Wanshurn, 8 Ch. L. N., 324; Jackson v. Brookins, 5 Hun., 530.
    
      Samuel F. Carey and Henry M. Cist, for defendant in error,
    cited Boyd v. Watt, 27 Ohio St., 259.
   McCauley, J.

Counsel on both sides argue and submit this case on the facts found by the district court. The part of the facts upon which the liability of the defendants is supposed to turn, is, “ that the husband of said defendant in error was habitually intoxicated and that said sales of intoxicating liquors made by plaintiff in error, were with knowledge of this fact and contributed to keep up said habit.”

The 7th section of the act of May 1, 1854, as amended April 18th, 1870 (67 O. L., 102), provides, “that a wife * * * who shall be injured * * * in means of support * * * in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in her own 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.”

The intoxication mentioned in the statute is “ habitual or otherwise,” so that, whoever by selling intoxicating liquors, causes habitual intoxication, does just what the statute provides shall make him liable. The statute further provides that the person injured shall have a right of action severally or jointly against the person or persons who by selling, have caused the intoxication, that is, the habitual intoxication, in whole or in part.

The facts found show that the husband of the plaintiff was habitually intoxicated, that the sales of intoxicating liquors to him, by the defendants, was with knowledge of this fact and contributed to keep up said habit. This is equivalent to saying that the defendants by the sales of liquors to the husband contributed to keep him in a condition of habitual intoxication.

All persons who so contribute are, under this statute, jointly and severally liable.

Counsel for plaintiffs in error urge that the question determined in Kirchner v. Myers, 35 Ohio St., 85, is decisive of this case.

The question in that case was, whether after the plaintiff had offered evidence tending to prove that for three years the defendants continuously sold to Myers intoxicating liquors, upon which he frequently became intoxicated, the defendants might prove that during the same time, he became intoxicated by liquors he purchased of other persons. It was there held that such evidence on the part of the defendant was proper, for the reason, says Judge Okey in his opinion, “that it would have been for the jury to say, whether the sales at other saloons had simply contributed to or increased the intoxication produced by liquors sold by the defendants below, in which case the evidence could not have aided them; or whether in fact, the liquors procured of persons other than the defendants caused independent intoxications, to which the defendants below did not contribute, in which case the evidence should have been considered in their favor.” This reasoning supports the liability of the defendants below in this case, upon the facts found, that they by their sales contributed to keep up the habitual intoxication of the plaintiff’s husband.

Judgment affirmed.  