The plaintiff and her husband, while riding in their own carriage on a public highway, were run into, and their carriage overturned, and they were thrown therefrom, by one Shaw, who was driving a horse before a buggy, and going in the same direction. The plaintiff received severe personal injuries. The evidence tended to show that Shaw was in a state of intoxication, and that his conduct in the management of his horse was careless and reckless. The defendants were liquor dealers in the city of Auburn, and the evidence tended to prove, and fairly justified the conclusion, that the liquor which caused Shaw’s intoxication, in whole or in part, was sold by them on the evening of the day preceding the accident. The serious question in the case is whether the sale of the liquor by the defendants was made under such circumstances as to make them liable to the plaintiff for the injuries which she sustained, within the provision of the act (chapter 646, Laws 1873) entitled “An act to suppress intemperance, pauperism, and crime.”
For the purpose of considering the questions presented by this appeal, the provisions of the statute may be briefly stated, as follows: “Every * * * person * * * who shall be injured in person or property, * * * by any intoxicated 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, cause the intoxication, in whole or in part, of such person.” The evidence shows that Shaw and one Gage, both of whom reside in Auburn, were friends and companions. They were employed in thesamemanufaeturing establishment as mechanics or laborers, and on Saturday evening, which was the day before the accident occurred, they planned a ride together in a buggy, which Shaw was to procure at his own expense. At this time they were on the street together, near the defendants’ place of business, and they entered the store in company,.Shaw remaining near the front door in conversation with one of the defendants, and Gage passed to the rear of the store, and purchased from a clerk a pint of whisky, which was put into a bottle which Gage had with him, for which he paid the clerk, and then Shaw and Gage left the store together, and soon separated, agreeing to meet the next morning at an appointed place, and there is no proof that either drank any of the liquor that night. Gage was in the habit of occasionally purchasing liquor at the defendants’ store, and they knew him as one of their occasional customers, who purchased liquor in small quantities. Neither of them had much acquaintance with Shaw. The evidence is scant on the subject, but we think it justifies the inference that before Shaw and Gage entered the defendants’ store it was understood between them that Gage should have his bottle filled with whisky to be drank by them on their ride the next day. As the exceptions were ordered to be heard here in the first instance, only questions of law are before us for review. The next morning they started on their ride in the country, Shaw having procured a horse and buggy, and soon commenced drinking from the bottle. Before the accident Gage had left the buggy, and another person occupied his seat, Shaw all the time driving the horse.
We are of the opinion that a case was made for the consideration of the jury, with proper instructions as to the law of the case. The court charged the jury, in substance, that if Shaw did not participate in the purchase of the liquor from the defendants, they were not liable; that if Gage purchased the liquor on his own account, and paid for it with his own money, and after-wards gave the liquor or a portion of it to Shaw, which contributed to the intoxication of the latter, then the defendants were not liable; and the court also stated to the jury if they should reach the conclusion that Shaw did not go into the store for the purpose of participating any way in the purchase of the liquor, and that he had no knowledge that Gage was intending to purchase the liquor for his own use, then the plaintiff could not recover. He then instructed the jury that if they should find as a matter of fact that Gage and Shaw went into the defendants’ place of business on the evening of the
The trial court gave the statute a construction that the defendants were liable if the purchase was in fact made in pursuance of an understanding between Gage and Shaw that the liquor should be purchased for their common use, although the defendants did not know, nor have any reason to suppose or believe, that Shaw was to share in the use of the liquor. We incline to the opinion and so hold the charge in this respect was erroneous, and should have been qualified so as to make the defendants’ liability depend upon their having reason to suppose or believe, under the circumstances of the case, that Shaw and Gage had arranged between themselves for purchasing the liquor of the defendants to be drank by both of them. If either of them knew, or had reason to suppose or believe, that, as matter of fact, Shaw was interested in the purchase, then the defendant would not be liable, but it would present a case where liquor was purchased by a person who afterwards gave the same to be drank by another. The statute imposes serious penalties on all dealers of intoxicating liquors who shall sell the same as a beverage, where intoxication is caused by its use, which are wholly unknown to the common law, and but few general rules can be laid down which will be applicable to all eases arising under the statute, and each case must be deter-mi ned by its facts and attending circumstances. Motion for a new trial granted, with costs to abide event. Macomber, J., concurs; Dwight, J., not voting.