
    Elizabeth J. Dudley, App’lt, v. Edward D. Parker et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 19, 1892.)
    
    'Cim- DAMAGE ACT.
    One Gage, on Saturday night, being in the company of S., purchased a bottle of liquor of defendants, and the next morning they both drove to M., having said bottle with them. Here S. left Gage and returning in company with a third party and being intoxicated recklessly drove against the carriage conveying plaintiff, overturned it and injured her. Held, that as it did not appear that the defendants were responsible for the intoxication of S. plaintiff could not recover.
    Appeal from order of the general term of the supreme court in the fifth judicial department, granting a motion for a new trial •on exceptions heard there in the first instance.
    The action was brought to recover damages for personal injuries suffered by the plaintiff, occasioned by being thrown from the carriage in which she was riding with her husband on a highway in the county of Cayuga, on October 10, 1886. This was •caused by the act of one Edward Shaw, who, in driving a horse hitched to a buggy, and going in the same direction, recklessly drove against the carriage conveying the plaintiff and overturned it, •causing serious injury to her. The plaintiff, in her complaint, alleged that Shaw was then intoxicated, and that his intoxication was caused in whole or in part by intoxicating liquor which had been sold by the defendants to him and one Cage. The plaintiff had a verdict, aud the exceptions were ordered heard at general term in the first instance.
    
      Frank D. Wright (James G. Smith, of counsel), for app’lt; James-Lyon (S F. Payne, of counsel), for resp’ts.
    
      
       Affirming 28 St. Rep., 338.
    
   Bradley, J.

The main question presented is whether there was any evidence to justify the submission of the case to the jury, and this arises upon the exception to the denial of the motion for a nonsuit, made on the ground that it did not appear that the defendants sold or furnished any liquor to Shaw. The conclusion was warranted that he was intoxicated at the time in question,, and that the intoxicating liquor which caused or contributed totas intoxication was sold by the defendants, and that the plaintiffs injury was in consequence of such intoxication. The right of action in this class of cases is dependent upon the statute, which provides that “ every * * * person who shall be injured in person * * * by any intoxicated person, or in consequence of the intoxication * * * 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 intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons.” Laws 1873, chap. 646.

The purpose of this statute was to place the responsibility forth e injurious consequences to others than the intoxicated person upon those who should furnish the liquor which produced the intoxication of the person by whom, while in and by reason of that condition, or in consequence of it, the injury should be caused or suffered. This obligation is one of the incidents imposed by statute upon the liquor traffic. The question, when it arises, is-not one of care or diligence on the part of the seller, but is simply one of cause and effect. And as has been said by this court,, while the statute should not, by judicial construction, be enlarged, it should be interpreted “ according to its true intent and meaning, having in view the evil to be remedied and the object to be attained.” Mead v. Stratton, 87 N. Y., 493. And that “ the-legislature, having control of the subject of the traffic in the use of intoxicating liquors, may make such regulations to prevent the public evils and private injuries resulting from intoxication as in its judgment are calculated to accomplish this end.” Bertholf v. O'Reilly, 74 N. Y., 509, 524.

The statute is one of indemnity for consequences that may-result from the traffic in liquors, consequences attributable to intoxication. But to charge a party, within the meaning of the statute, the furnishing the liquor by him must be in whole or in part the proximate cause of the intoxication to which the injury complained of may be imputable. And for that purpose the-liquor must be furnished by such party to the person whose intoxication is the foundation of the charge of liability for the injury. In the present case the liquor was sold by the defendants - and the question is whether or not there was any evidence tho^ Edward Shaw was a party to the purchase of it. He did nofc participate openly in the transaction of making it, but it is in__ sisted on the part of the plaintiff that the inference was permitted that he was, in fact, a participant in the purchase made by one William Gage. The burden was with the-plaintiff to prove that such was the fact. And for the purpose of proving her case in that respect she relied upon the evidence of those persons, by which it appears that they were engaged as employees in the same manufacturing establishment in the city of Auburn ; that on Friday before the Sunday when the calamity occurred Shaw invited Gage to go with him to Meridan the next Sunday, provided a young lady did not do so; that they were together Saturday evening on the street, and as they came-to the defendants’ liquor store Gage went in, and on his invitation Shaw went in with him ; that the latter stopped inside near the door, and talked with a person there while Gage proceeded thirty or forty feet farther to the counter, and there had his bottle filled with whiskey, as he had before and periodically been accustomed to do; he paid for it, and they both went out together that they soon parted,' and went to their homes; that Shaw repeated the invitation to Gage to go with him. to Meridan the next day, and was informed by the latter that he would let him know in the morning. It does not appear that they drank any of the liquor that night, or that Shaw was informed by Gage of his purpose to get any liquor, or that anything was said on the subject, that evening by either to the other. Nor does it appear that. Shaw knew the purpose for which Gage went into the defendants’” place, unless it might be inferred from the fact that it was a liquor-store. The next morning they met. Shaw procured a horse and buggy, and they together went to Meridan; Gage had with him-the bottle of liquor purchased the night before, and from which they drank on their way there. On their arrival at Meridan Gage-left the buggy, and Shaw took in a Mr. Brown, and with him in it. was driving at the time the collision with the carriage in which the plaintiff was riding, and her injury as the consequence occurred. It is quite evident from,, their manner of testifying, as appears by the record, that those witnesses had no desire to support further than was necessary for them to do so the plaintiff’s alleged cause of action. And there may have been some reason founded upon speculation to apprehend that Shaw understood that Gage-intended to get liquor when they went into the store, and that hehád obtained it when they departed, but those facts, or that it was-intended for their use on the trip the next day, does not appear by any evidence to that effect. In fact the evidence of the witnesses was that it was not definitely concluded until Sunday morning that Gage would go with Shaw to Meridan.

The fact, as claimed on the part of the plaintiff, that they were unwilling witnesses did not furnish any evidence in support of her action, although it might aid in giving construction favorable to the plaintiff’s ease of testimony given by' them having doubtful import. The difficulty is that there was no evidence to the effect or legitimately in support of inference that Shaw was in any sense a purchaser or in any manner participated in the purchase from the defendants of the liquor which produced the intoxication. And therefore it did not appear that the intoxication of Shaw was the proximate effect of the act of the defendants in selling the liquor. But that it was the supply to him by Gage of the liquor purchased by the latter which produced the intoxicatian of Shaw, who while in that condition and in consequence of it did the act which resulted in the plaintiff’s injury. If Gage had been driving the horse at the time and the accident had then occurred as it did, a different question would have been presented. Then there would have been facts to support a recovery against the defendants. It not appearing that the defendants • were responsible for the intoxication of Shaw, the plaintiff was not entitled to recover. The exception to the denial of the motion for non-suit was, therefore, well taken.

There were other exceptions, which, in the view taken, require no consideration.

The order should be affirmed and judgment absolute directed for the defendants, with costs.

All concur.  