Concurring Opinion.
Rabb, J.This action is based upon that provision of the temperance law providing that any person who shall sell intoxicating liquor, in violation of any of the provisions of this act, shall be personally liable, and also liable on his bond to any person who shall sustain injury or damage to his person, property or means of support.
Together with much redundant matter, it is averred that the relatrix’s husband was a person in the habit of becoming intoxicated; that appellee Mann was a licensed saloon-keeper, engaged in retailing intoxicating liquors at a certain designated place, and the other appellees were the sureties on his bond as such saloon-keeper; that relatrix notified appellee Mann that her husband was in the habit of becoming intoxicated, and requested him not to sell her said husband intoxicating liquors; that said appellee thereupon told relatrix that she need not go to the trouble- of giving him notice in writing, and assured her that he would sell her husband no more liquor; that since September 18, 1904, her said husband has been continuously drunk, on liquor procured at Mann’s saloon, and that after said notice was given, up to the time the suit was brought, appellee Mann had continued to sell and give to her said husband intoxicating liquor; that, in consequence of such sales and gifts of liquor, her husband had become so affected by the drink that he neglected his business, and neglected to supply relatrix witli the necessaries and comforts of life.
I cannot concur in the view that the complaint in this *125ease is sufficient as charging a sale of liquor in violation of that provision of the statute making it unlawful to sell or give liquor to a person in the habit of becoming intoxicated, after notice in writing has been given the saloon-keeper, as provided in the statute. The statute giving this right of action is in derogation of the common law. It imposes upon defendant an obligation not existing at common law, and must be strictly construed. Burns v. Grand Rapids, etc., R. Co. (1888), 113 Ind. 169; Hamilton v. Jones (1890), 125 Ind. 176; Board, etc., v. Jarnecke (1905), 164 Ind. 658; Chicago, etc., R. Co. v. Sturgis (1880), 44 Mich. 538, 7 N. W. 213; City of Detroit v. Putnam (1881), 45 Mich. 263, 7 N. W. 815; City of Detroit v. Chaffee (1888), 70 Mich. 80, 37 N. W. 882; In re Hollister Bank (1863), 27 N. Y. 393, 84 Am. Dec. 292; Lane’s Appeal (1884), 105 Pa. St. 49, 51 Am. Rep. 166; O’Reilly v. Bard (1884), 105 Pa. St. 569; Cohn v. Neeves (1876), 40 Wis. 393.
A liability might have been imposed by the lawmaking power for selling or giving intoxicating liquor to a person in the habit of becoming intoxicated, without reference to whether such sale was unlawful or not, but it has not chosen to do so. It is only for violations of the provisions of this act that liability follows. This court cannot write into the statute words that are not there, and therefore there can be no liability unless the sale is illegal. 6 Am. and Eng. Ency. Law (2d ed.), 42; Myers v. Conway (1880), 55 Iowa 166, 7 N. W. 481; Peacock v. Oaks (1891), 85 Mich. 578, 48 N. W. 1082; Baker v. Beckwith (1876), 29 Ohio St. 314; Sibila v. Bahney (1878), 34 Ohio St. 399; Granger v. Knipper (1873), 2 Cin. Super. Ct. Rep. 480; Russell v. Tippin (1896), 12 Ohio C. C. 52; Stanton v. Simpson (1876), 48 Vt. 628.
It cannot successfully be contended that a criminal prosecution for a violation of this provision of the law will lie against the principal defendant, upon the facts stated in the complaint. It is essential that an indictment, predicated *126upon, the sale of intoxicating liquor to a person in the habit of becoming intoxicated, shall include the averment that the sale was made after notice in writing, given by some inhabitant of the township. Geraghty v. State (1887), 110 Ind. 103; State v. Smith (1890), 122 Ind. 178.
The notice in writing is not only a necessary ingredient in a criminal charge, but it is an essential element in a civil action predicated upon a violation of this provision of the law. It is not a question of the waiver of benefits, but a question as to whether all of the elemental facts authorizing a statutory right of recovery are shown in the complaint.
But it does not follow that the complaint is insufficient because no violation of this particular provision of the law is shown; nor is the averment of the complaint, “that by reason of the violation of said notice relatrix has suffered great loss, ’ ’ of controlling influence in determining the character of the pleading. The action is predicated upon injuries alleged to have resulted to relatrix from the continued sale of intoxicating liquor to her husband, whereby he became incapable of following his business and to provide for the support of the relatrix; and, if the facts averred in the complaint show that the sales alleged to have produced this effect were in violation of any of the provisions of the law, the complaint is sufficient to withstand a demurrer, even though relatrix may have been mistaken as to what particular provisions of the law were violated by these sales.
It is directly averred that the husband was drunk continuously from the time he began to patronize appellee Mann’s saloon up to the time the suit was brought. The word “drunk” and the phrase “in a state of intoxication” are synonymous, and the appellees were bound to know, from the allegations of the complaint, that the relati’ix was charging that appellee Mann had sold to her husband, continuously for the period of time named, intoxicating liquor when he, the husband, was in a state of intoxication, and that he was thereby kept continuously in a state of intoxication, *127destroying' his power and ability to carry on his business and provide for his family. To sell, barter, or give away intoxicating liquors to a person in a state of intoxication, knowing him to be in such state, is a violation of one of the provisions of the law giving relatrix her right of action, and we think that the violation of this provision of the law is sufficiently shown by the averments of the complaint.
It has been held that under the statute (§8355 Burns 1908, §5323 R. S. 1881, Acts 1875 [s. s.], p. 55, §20) giving a right of action to a person damaged by the unlawful sale or gift of intoxicating liquors to a person who is intoxicated, it is not necessary to allege that'the sale or gift of the liquor was made by the defendant with a knowledge that such person was intoxicated. Werneke v. State (1875), 50 Ind. 23; Brow v. State (1885), 103 Ind. 133; Mulcahey v. Givens (1888), 115 Ind. 286; Homire v. Halfman (1901), 156 Ind. 470; State, ex rel. v. Terheide (1906), 166 Ind. 689 ; Baecher v. State, ex rel. (1898), 19 Ind. App. 100; State, ex rel. v. Soale (1905), 36 Ind. App. 73.
For this reason I concur in the reversal of the judgment of the court below.
Myers, J., concurs.