The opinion of the court was delivered,
by Woodward, J.
What this case was upon the pleadings, we are not informed, for they have not been exhibited. But from the charge of the judge, Ave learn that it was an action on the case, brought by the defendant in error, as AvidoAV of Jacob Gar-man, deceased, against Jacob Fink, the plaintiff in error and defendant below, for furnishing to the said Garman, a man of knoAvn intemperate habits, and at a time when he was intoxicated, an additional quantity of intoxicating liquor, by Avhich he became so inebriated that he fell from his horse under the Avheels of his wagon, and Avas instantly killed. Fink was a licensed innkeeper.
The action is grounded on the 19th section of the Act of Assembly of April 15th 1851, that gives to the Avidow, or personal representative of a decedent, an action for damages when the death of the decedent is occasioned by “unlawful violence or negligence.” The 18th section provides, that no action brought by the person injured by the “negligence or default” of another, shall abate by reason of the death of the plaintiff, but shall survive to his personal representative.
Counsel insist that these sections' were not intended to create any neAv cause of action unknown to the common law, but only to prevent the abatement of personal actions, according to the common laAV maxim, Actio personalis moritur cum persona.
The 18th section was apparently intended to regulate a common laAV right of action, by securing to it survivorship; but the 19th section was creative of a new cause of action, Avholly unknoAvn to the common kw. And the right of action was not given to the person suffering the injury, since no man could sue for his OAvn death, but to his widoAY or personal representative. It was not survivorship of the cause of action which the legislature meant to provide for by this section, but the creation of an original cause of action in favour of a surviving widow or personal representative. It Avas quite competent for the legislature to alter the common kw in this regard. They did so by giving parties a right of action who had none before. To give the section the restricted construction suggested in the argument, would be to repeal it, for no such action as the present could pre-exist to survive the death of the injured party.
The widow’s right of action, therefore, would seem to be unquestionable, if her husband’s death was occasioned by the [104]*104“unlawful violence or negligence”jif the defendant. Was it? In other words, was it unlawful negligence for the defendant, an innkeeper, to give or sell liquor to a man of known intemperate habits, who was already intoxicated ? The court below thought it was, for reasons that are fully set forth in the charge, and we are inclined to concur with the learned judge.
The 8th section of the Act of May 8th 1854, Pamph. L. 663, makes it a misdemeanor, punishable by fine and imprisonment, to furnish intoxicating drinks to a person of known intemperate habits, or to any person when drunk or intoxicated.
The 3d section of the same act subjects the offender to civil liability for any injury to person or property, in consequence of such furnishing, and any one aggrieved may recover full damages.
And by the 1st section of the Act of April 26th 1855, Pamph. L. 309, widows, children, or parents may recover damages for any injury causing death.
Such are the statutory restraints and liabilities under which innkeepers and all others are placed in respect of persons known to be intemperate, and of persons presently intoxicated. According to the evidence Garman answered both descriptions. He was well known to Eink as a person of intemperate habits, and as a person at that moment intoxicated. Yet Fink gave him more liquor. To do so was to commit a public misdemeanor — to make himself liable in damages for any injury Garman should inflict on the person or property of another by reason of the additional glass — and if that last drink was the proximate cause of his own death, then the statute gave the widow a right of action also against Fink. What but unlawful negligence was it thus to wantonly violate the dictates of common prudence — offend criminal and civil statutes, and bring on himself such various penalties ? No standard of social duty, or of obedience to law, can be applied to Fink’s act which will not prove it to have been in a very eminent sense unlawful negligence.
But, say counsel, these statutes were subsequent to the Act of 1851, which gave the widow her action, and the cases which the later statutes provide for are not within the purview of the former.
The answer is, that the Act of 1851 gave the action for two generic causes — unlawful violence and negligence — but the legislature defined neither violence nor negligence. Be it that the courts would not have so defined these words as to embrace the defendant’s act, yet it was competent for a subsequent legislature to enlarge the circle of unlawful deeds, and to make wrongdoing, like that of the defendant, culpable negligence. They did so. They told the defendant plainly what might be the consequences of his furnishing liquor to Garman, and among them was liability to the suit authorized by the Act of 1851. The [105]*105more recent the admonition the less excuse there was for forgetting it. It would probably be found, if it were worth while to go into an examination of all prior legislation, that it never was lawful, but always unlawful negligence in Pennsylvania to furnish liquors to men actually drunk at the time, or known to be habitually intemperate. The licensing of innkeepers was founded on the obligation of a civilized community to provide places of rest and refreshment for strangers and travellers, and a monopoly in the traffic of liquors by small measure was the reward which the public offered to individuals who would incur the trouble, and maintain the arrangements necessary to discharge this duty of hospitality to strangers and travellers. It was for strangers and travellers taverns were licensed — not for idlers and tipplers of the neighbourhood. And it would probably be found, I repeat, from a comparison of all the Acts of Assembly, that it was as clearly unlawful in 1851 to furnish liquor to an intemperate neighbour as it was after the legislation of 1854 and 1855 — so that no room would exist for the distinction taken in the argument. But it is unnecessary to rest the answer to the argument on this ground, because, however it was before 1854, it is clear beyond all reasonable doubt that the legislation of that year made the furnishing of liquor to an intemperate neighbour an act of “unlawful negligence” within “the meaning” of the Act of 1851.
Again: counsel suggest that the only civil action to which the statutes subject the offender is such as may be brought by a party whom the inebriate injures. Not so. The argument loses sight of the large and comprehensive terms of the statutes. “ Any person aggrieved” may sue, says the Act of 1854, and “for any injury causing death” the widow has her action by the Act of 1855. Now, that a widow is a person aggrieved by the injury or death of her husband is a conclusion of law which rests, not upon the sudden sundering of the most interesting relation of human life, but upon the pecuniary advantages wdiich she loses thereby. Her right of support from his industry — her right of dower from the accumulations of his life — give her a fixed pecuniary interest in his existence.
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The opinion of the court was delivered,
by Woodward, J.
What this case was upon the pleadings, we are not informed, for they have not been exhibited. But from the charge of the judge, Ave learn that it was an action on the case, brought by the defendant in error, as AvidoAV of Jacob Gar-man, deceased, against Jacob Fink, the plaintiff in error and defendant below, for furnishing to the said Garman, a man of knoAvn intemperate habits, and at a time when he was intoxicated, an additional quantity of intoxicating liquor, by Avhich he became so inebriated that he fell from his horse under the Avheels of his wagon, and Avas instantly killed. Fink was a licensed innkeeper.
The action is grounded on the 19th section of the Act of Assembly of April 15th 1851, that gives to the Avidow, or personal representative of a decedent, an action for damages when the death of the decedent is occasioned by “unlawful violence or negligence.” The 18th section provides, that no action brought by the person injured by the “negligence or default” of another, shall abate by reason of the death of the plaintiff, but shall survive to his personal representative.
Counsel insist that these sections' were not intended to create any neAv cause of action unknown to the common law, but only to prevent the abatement of personal actions, according to the common laAV maxim, Actio personalis moritur cum persona.
The 18th section was apparently intended to regulate a common laAV right of action, by securing to it survivorship; but the 19th section was creative of a new cause of action, Avholly unknoAvn to the common kw. And the right of action was not given to the person suffering the injury, since no man could sue for his OAvn death, but to his widoAY or personal representative. It was not survivorship of the cause of action which the legislature meant to provide for by this section, but the creation of an original cause of action in favour of a surviving widow or personal representative. It Avas quite competent for the legislature to alter the common kw in this regard. They did so by giving parties a right of action who had none before. To give the section the restricted construction suggested in the argument, would be to repeal it, for no such action as the present could pre-exist to survive the death of the injured party.
The widow’s right of action, therefore, would seem to be unquestionable, if her husband’s death was occasioned by the [104]*104“unlawful violence or negligence”jif the defendant. Was it? In other words, was it unlawful negligence for the defendant, an innkeeper, to give or sell liquor to a man of known intemperate habits, who was already intoxicated ? The court below thought it was, for reasons that are fully set forth in the charge, and we are inclined to concur with the learned judge.
The 8th section of the Act of May 8th 1854, Pamph. L. 663, makes it a misdemeanor, punishable by fine and imprisonment, to furnish intoxicating drinks to a person of known intemperate habits, or to any person when drunk or intoxicated.
The 3d section of the same act subjects the offender to civil liability for any injury to person or property, in consequence of such furnishing, and any one aggrieved may recover full damages.
And by the 1st section of the Act of April 26th 1855, Pamph. L. 309, widows, children, or parents may recover damages for any injury causing death.
Such are the statutory restraints and liabilities under which innkeepers and all others are placed in respect of persons known to be intemperate, and of persons presently intoxicated. According to the evidence Garman answered both descriptions. He was well known to Eink as a person of intemperate habits, and as a person at that moment intoxicated. Yet Fink gave him more liquor. To do so was to commit a public misdemeanor — to make himself liable in damages for any injury Garman should inflict on the person or property of another by reason of the additional glass — and if that last drink was the proximate cause of his own death, then the statute gave the widow a right of action also against Fink. What but unlawful negligence was it thus to wantonly violate the dictates of common prudence — offend criminal and civil statutes, and bring on himself such various penalties ? No standard of social duty, or of obedience to law, can be applied to Fink’s act which will not prove it to have been in a very eminent sense unlawful negligence.
But, say counsel, these statutes were subsequent to the Act of 1851, which gave the widow her action, and the cases which the later statutes provide for are not within the purview of the former.
The answer is, that the Act of 1851 gave the action for two generic causes — unlawful violence and negligence — but the legislature defined neither violence nor negligence. Be it that the courts would not have so defined these words as to embrace the defendant’s act, yet it was competent for a subsequent legislature to enlarge the circle of unlawful deeds, and to make wrongdoing, like that of the defendant, culpable negligence. They did so. They told the defendant plainly what might be the consequences of his furnishing liquor to Garman, and among them was liability to the suit authorized by the Act of 1851. The [105]*105more recent the admonition the less excuse there was for forgetting it. It would probably be found, if it were worth while to go into an examination of all prior legislation, that it never was lawful, but always unlawful negligence in Pennsylvania to furnish liquors to men actually drunk at the time, or known to be habitually intemperate. The licensing of innkeepers was founded on the obligation of a civilized community to provide places of rest and refreshment for strangers and travellers, and a monopoly in the traffic of liquors by small measure was the reward which the public offered to individuals who would incur the trouble, and maintain the arrangements necessary to discharge this duty of hospitality to strangers and travellers. It was for strangers and travellers taverns were licensed — not for idlers and tipplers of the neighbourhood. And it would probably be found, I repeat, from a comparison of all the Acts of Assembly, that it was as clearly unlawful in 1851 to furnish liquor to an intemperate neighbour as it was after the legislation of 1854 and 1855 — so that no room would exist for the distinction taken in the argument. But it is unnecessary to rest the answer to the argument on this ground, because, however it was before 1854, it is clear beyond all reasonable doubt that the legislation of that year made the furnishing of liquor to an intemperate neighbour an act of “unlawful negligence” within “the meaning” of the Act of 1851.
Again: counsel suggest that the only civil action to which the statutes subject the offender is such as may be brought by a party whom the inebriate injures. Not so. The argument loses sight of the large and comprehensive terms of the statutes. “ Any person aggrieved” may sue, says the Act of 1854, and “for any injury causing death” the widow has her action by the Act of 1855. Now, that a widow is a person aggrieved by the injury or death of her husband is a conclusion of law which rests, not upon the sudden sundering of the most interesting relation of human life, but upon the pecuniary advantages wdiich she loses thereby. Her right of support from his industry — her right of dower from the accumulations of his life — give her a fixed pecuniary interest in his existence. The loss of his society — of his assistance in rearing children, and managing whatever estate they may have, and the consequent labour and trouble that are devolved on her — are not these circumstances to aggrieve her ? I do not mean by this question grief of the affections, but injury of the pecuniary interests of the wife. It is the wound of these lower and more sordid sensibilities the law undertakes to heal. Its hand is too rough to mend a broken heart. The legislature have adjudged her entitled to compensation in numbered moneys from him who brings these losses and inconveniences upon her by unlawful violence or negligence. The jury in this case were [106]*106properly restrained to the consideration of her pecuniary rights in assessing the damages.
■ One other suggestion of counsel should be noticed. It is said that if Garman's death resulted from the act of the defendant, his own negligence concurred in producing it, and hence no action arose. When the death is the result of concurring negligence, I do not see how it can with truth be so referred to the unlawful negligence of the defendant as to make him liable. The death to be answered for in damages must be the direct, though it need not be the immediate result of the wrongful act of the party charged. His act must be what we call the proximate cause of the injury complained of. If the proximate cause was compounded of his act, and the unlawful act of the decedent, the civil remedy is gone.
But how does this doctrine apply here ? Garman was already intoxicated. Then he was incapable of legal acts. He was like an idiot, or a child of tender years, and to such cases the doctrine of concurring negligence is inapplicable. Not only was he incapable of exercising sound discretion, and therefore is not to be held to its exercise, but his condition was notice to Fink — ■ was an app>eal to his humanity — was such as to make his violation of the statutes more palpably unlawful negligence.
If, therefore, Garman was precipitated from his horse under the wheels of his wagon by reason of Fink’s deliberate wrongdoing (and of this the jury must have been satisfied before they could find for the plaintiff), the turpitude of Fink’s act is not to be abated, but rather increased by such concurrence as he obtained from the inebriate. It was not a responsible concurrence. It does in no degree relieve Fink’s liability. The parties were not on equal footing, and it would be a great misjudgment to hold them equally responsible for what was done. The Act of 1854, which makes it a misdemeanor to furnish an inebriate liquor, takes no notice whatever of the drunkard’s act in accepting the furnished liquor. This marks the distinction which every man’s moral sense feels to exist between the acts of the parties.
We have noticed sufficiently the objections urged against the ruling below. We care not how distinctly it is understood by all who deal in intoxicating drinks, that not only public policy but statute law forbids that they be furnished to him who is intoxicated, or who is habitually intemperate, though not presently intoxicated. There is no excuse for ignorance or mistake where the law is so plainly written. If men will disregard it they must accept the consequences. As the judicial tribunals did not make the law, they have no power to lessen its exactions, and, looking to the humane purposes of the legislation, they have no disposition to thwart it by glosses and refinements.
The judgment is affirmed.