Defendants. Schaffer Bros, were saloon keepers. As such they gave bonds under the provisions of section 2839, P- C. The other defendant, a surety company, was the surety on such bonds from July 1, 1913, until after the commencement of this action, which was in May, 1915. Plaintiff sought to recover om such bonds damages which she claimed to have suffered through the sale of intoxicating liquors to her husband, Leon Strong, by Schaffer Bros. In trial court there were verdict and judgment for plaintiff. From such judgment, and an order denying a new trial, all the defendants appealed. '
[1] Appellants question the sufficiency of the complaint. This.question was raised in the trial court by objections to introduction of evidence. If it had been raised before trial, the trial court might properly have required the complaint to have been amended; but the complaint was not so lacking in substance as to justify the trial court in sustaining the objection to introduction of evidence. Anderson Dumber Co. v. Spears, 25 S. D. 624, 127 N. W. 643.
[2] Respondent alleged that her husband was in the habit of getting intoxicated; that repeatedly, and' on divers days and dates from July 1, 1913, until the commencement of this action, the Schaffers had sold him intoxicating liquors; that by reason of the above she had been and was deprived of the support and maintenance for herself and children to which she was justly and legally entitled from her husband. By the instructions of the trial court we are relieved from, any necessity of discussing what respondent had to prove to establish her cause of action. Such court limited respondent’s. right of recovery to “damages, if any, suffered by the plaintiff occasioned to her means of support for herself and children.” Respondent is correct in saying:
“The question is: Did he • support his family ? If not did the sale of liquor by the defendants enter into his reason for not doing so, and to what extent?” ,
There was no evidence to show that Strong was ever in the Schaffer saloon prior to September, 1913. The evidence is undisputed that he became addicted to the use of intoxicating liquors *253in 1912; that in September, 1913, he was capable of and was earning 35 cents an hour, and continued capable of and did earn this amount up to the time this action was brought; that he had quit giving his family any material assistance before September, 1913; that he was drunk a good share of the time after September, 1913, and bought a part, at least, of his liquor in the Schaffer saloon. The jury, if it were not for the evidénce to the contrary, might have presumed that Strong was, through his drunkenness, rendered less capable of earning money than he was on September 1, 1913. The jury may have found that, owing to such drunkenness, he actually lost time from his work, though there wats no direct evidence that he ever lost an hours’ time from his work on account of such drunkenness. Inasmuch as it is usual and natural for the husband and father to, and in fact is his legal duty to, provide for his family, and inasmuch as there was evidence showing that, before he became addicted to the use of intoxicants, he did provide for his family, the jury were undoubtedly warranted in finding that, if he could not have got intoxicating liquors, he would have used his earnings for the benefit of his family. Therefore, though we believe it should have been possible for respondent to have furnished better evidence of some of the necessary elements of the cause of' action, we would hardly feel justified in reversing the judgment upon the ground, as urged by appellants; that the verdict was unsupported by the evidence.
[3] Appellants contend that certain evidence was improperly received. Conceding that there was evidence properly received, which furnished answers favorable to* respondent to the questions, “Did he support his family?” and “Did the sale of liquor by the defendants enter into his reason for not doing so * * *?” we need still inquire whether there was* error in the receipt of certain evidence which we must presume the jury considered in determining “to what extent” respondent was damaged. The greatest possible earning capacity upon which respondent’s claim for damages* could be based would be Strong’s earning capacity in September, 1913, if he had not then been addicted to the use of intoxicating liquors. There was no competent evidence that such earning capacity exceeded $90 per month* — *35 cents per hour. There was received over appellants’ objections, evidence in rela*254tion to his earning capacity during a period from November, 1910, to August, 1912. This evidence related to his earning capacity as an employee of á railway company, and showed that, until discharged for drunkenness, he earned from $125 to $135 per month. There seem to be two theories finding support in the decisions .of the courts. In' Michigan it has been held, in a case such as the one now before us, that the plaintiff could not 'base her damages on the earning capacity of her husband as a sober man. The court says that the wife cannot claim damage for “the loss of a sober husband when she has only a drunken one.” Friend v. Dunks, 39 Mich. 733. Therefore it was held that the jury should consider that, before the defendant made the sales, the plaintiff’s husband was already an habitual drunkard.
The second theory seems- to be that, although the plaintiff’s -husband may have been an habitual drunkard previous to the wrong complained of, yet, unless somebody furnished him liquor after that time, he would cease to be a drunkard; that, if defendant furnished him liquor, he was guilty of continuing such habit; that the defendant cannot show, as a matter of defense, that the husband was a drunkard prior to the sales; and that the plaintiff is entitled to recover from such defendant to the extent to which his sales caused the -injury complained of. League v. Ehmke, 120 Iowa, 464, 94 N. W. 938. If the husband is an habitual drunkard, the sale to him is unlawful. If he is not yet an habitual drunkard, while the sale is lawful, yet the sales assist in rendering him incompetent to, or else unwilling to properly supply his family. Under this theory plaintiff’s recovery is based upon the earning capacity of the husband immediately prior to the sales complained, of, such earning capacity being itself based upon the mental and physical powers which the jury finds such husband would -have been possessed of, if he had refrained from the use of intoxicants from that time on. It does not prevent the defense proving a diminished earning capacity resulting from permanent mental or physical weaknesses, even though such weaknesses may have been the result of former use of intoxicants. With evidence in relation to the extent of the husband’s earnings just prior to the sales complained of, it cannot be presumed that, if such sales had not been made, his earning capacity would have been that possessed by him a year or more previous thereto. If *255so, then it would be competent to show how. much the husband was capable of earning at a time when perhaps he was physically a much better man than he would have been at the time of the wrongful sales, even though he had then been free from the use of liquor. Furthermore, a person’s capacity to earn may be weakened through the use of liquor, so that, even if he ceases the use of liquor entirely, he would not be able to earn what he had previously been able to earn.
[4] If evidence of his earnings of two years before would in any manner have tended to show what his earning capacity as a sober man was at the time of these sales, then such evidence was competent. But the plaintiff was not entitled to recover anything on account of the difference in her husband’s earning capacity when he was working for .the railroad company and what his earning 'capacity was, if a sober man, at the time of these sales. To illustrate: If he -could earn $100 a month two years prior, but his earning capacity when sober was only $80 a month at the time -of the first s-ale complained of, the jury would have no right to base anjr recovery upon the $20 difference. The sole and only -question for determination under the second' theory, which is certainly the more favorable to plaintiff, is:' What was plaintiff’s husband’s earning capacity, as a sober man, at the time of the •first sale complained of? -The only competent evidence upon that point was that in relation to'his earning capacity as a mason’s helper — 35 cents an hour. If, in addition to the testimony that was received in relation to his earning capacity as a railroad employee, there had been any evidence that he was yet, if he would cease the use of liquor, capable of holding such a job, the jury would have a right to have used such evidence of former earning capacity as the basis upon which to fix damages. Woollen & Thornton, Intox. Lfiquors, • § 1065. There was absolutely no evidence that Strong, if not addicted to intoxicating liquors, could in September, 19x3, -or later, have got 'back his old job with the railway company, or that, if he could, it would have paid him the old wages. Defendants were in no manner liable for damages resulting from the loss of this job; therefore, in the absence -o-f any proof that the sale of liquors-to Strong kept him from getting a job giving greater returns than $90 per month, the court should not have allowed evidence to go before the jury, from which *256evidence the jury may have used $155 a month as its basis for computing damages, when such basis could not properly have exceeded $90.
Our colleagues are of the opinion that this evidence was competent. They stand, upon the theory that defendants can be hoi den for all the injury that had been done plaintiff through sales by other parties than defendants, even though such sales occurred prior to the period in which it is alleged that defendants made their wrongful sales. Our colleagues cite Cooley on Torts, 510. The law there announced is as follows:
“Neither is it a. defense that others also sold liquors to the husband; but, where several are liable, there can be lout one recovery for the injury. If the defendant sold -liquor which -contributed to the intoxication in question, it is sufficient to establish liability, and all who contribute are jointly and severally liable, and, in the latter case a release of one is a release of all. The -damages cannot be apportioned among the defendants, but each is liable for the entire amount.”
We have examined all the authorities cited by Cooley in-support of such proposition. All such cases are from Illinois. An examination of these Illinois cases discloses that they are all-based on the express provisions -of a statute of that state under which several defendants may be joined as joint tort-feasors. A reading of these cases discloses that, even under that statute, a party could not be held liable for an injury done, or contributed to, by another, unless the contribution was a contribution to the very intoxication complained of. Thus in Hackett v. Smelsley, 77 Ill. 117, cited in the minority opinion, an instruction was complained of which advised the jury that the mere fact that the husband drank intoxicating liquors at other places than the saloons of defendants “zvithin the time alleged in the declarationn was a fact which the jury could not consider in reduction or mitigation of damages. This instruction was -held to be correct as an abstract proposition, in view of the provisions of the statute; but it will be noticed that this instruction limited the joint tort proposition to sales that were made during the period complained of in the complaint. In Telzner v. Naughton, 12 Ill. App. 148, it appeared that some of the parties who-were joined as defendants were those who contributed' to the husband’s habitual drunken*257ness, while the other defendants were those who contributed to the particular intoxication complained of, and the court held that all of these could not'be joined as tort-feasors — that the only ones who could be held as joint tort-feasors, even under the peculiar statute of Illinois, were those who contributed to the particular intoxication that formed the basis of the claim for damages. Thus it will be seen that, even under statutes such as that of Illinois, one can be holden for the acts of another only when such acts occurred and thus contributed within the time com' plained of. It follows that in Illinois a defendant would not be held liable for the tort of some other party occurring prior to the time charged in the complaint against defendant, and our attention has not been called to any authority so holding. The minority also cite Werner v. Edmiston, 24 Kan. 147. We believe that a careful reading of the opinion therein discloses that the court recognized the very distinction which we have noted above.
If the theory of the dissenting' opinion be correct, every person who ever sold the plaintiff’s husband a drink during his whole lifetime is a joint tort-feasor, and equally and jointly liable with every other person or persons who may have sold him liquors at any time up to the beginnig of the action, and the limitations upon the rule of damages involved in the doctrine of causation would be entirely removed. We cannot concur in a ■ view which would logically resul-t in such an extension of the rule of damages. It would seem to us • to be a complete answer to the position taken by our colleagues to suggest t^at, if defendants could be holden as joint tort-feasors with all who, in years prior to the time complained of, had aided in making plaintiff’s husband a drunkard, then, inasmuch as a recovery from defendants would stand as a bar to any recovery against such joint tort-feasors, the complaint herein should cover the time during which all the joint wrongs were committed.
[Si But even if our colleagues were correct, and the defendants, Schaffer Bros., could be holden as the joint tort-feasors of those who had sold liqjuor to plaintiff’s husband prior to the time of defendants’ sales, yet such rule of law can avail plaintiff nothing in this action. This is an action upon contract — the bond, and not a tort action. This court has held that there is no joint lia*258bility upon such bonds. Kennedy v. Garrigan, 23 S. D. 265, 121 N. W. 783, 21 Ann. Cas. 392; Dickmann v. Thomas, 36 S. D. 283, 154 N. W. 811.
We do not deem it necessary to consider the other assignments of error.
The judgment and order appealed from are reversed.