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 to his intoxication was sold by the defendants, *Page 389 and that the plaintiff's 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, caused the intoxication in whole or in part of such person or persons." (L. 1873, ch. 646.)
The purpose of this statute was to place the responsibility for the 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 obtained." (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 or for the person whose intoxication is the foundation of the charge of liability for the injury. In the present case the liquor was *Page 390 sold by the defendants, and the question is whether or not there was any evidence that Edward Shaw was a party to the purchase of it. He did not participate openly in the transaction of making it, but it is insisted 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 employes 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 Meridian 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 Meridian 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 Meridian, 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 Meridian 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 *Page 391 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 he had obtained it when they departed, but those facts do not nor does it appear that the liquor was by him intended for them or for any other than his own use by any evidence or any inference legitimately arising from it 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 Meridian. 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 case 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 act of the defendants in selling the liquor was the proximate cause of the intoxication of Shaw. But that it was the supply to him by Gage of the liquor purchased by the latter, which produced the intoxication 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 nonsuit was, therefore, well taken. *Page 392
There were other exceptions, which, in the view taken, require no consideration.
The order should be affirmed and judgment absolute directed for the defendants.
All concur.
Order affirmed and judgment accordingly.