It is not intended, however, by these statutes that a woman or a family, supplied with all the neces saries and comforts of their position in society, and well provided for, may sue and recover simply because the husband or parent becomes intoxicated, squanders some of the estate, neglects his business for a time, or becomes injured, and that by reason of such intoxication his future estate will be some smaller than it would have been.23 Those injuries which result in a loss of support must be the result of the liquor sold by the person charged, or, according to some statutes, the person owning the establishment where the sale is made. Some courts hold that the fact that the intoxication was a leading element to the injury is sufficient foundation for bringing the action under such statutes. Other courts hold that the loss sustained must be the proximate result of the intoxication. These various decisions follow from the different language of the several statutes, some giving a right of action. against a liquor seller to anyone injured by anyone to whom he has sold liquor, while others directly state that the loss must be occasioned by the intoxication. Where, through intoxication, a man becomes so careless in the management of horses that his sleigh is upset, and he himself injured so as to prevent him from continuing in his work, the loss occasioned thereby has been deemed the proximate result of the sale of the intoxicants.24 So, likewise, when through the commission of crime while in a drunken condition, and a consequent confinement in a prison, or through suicide while intoxicated, the

man, 76 Iowa, 638, 41 N. W. 385; Hackett v. Smelsley, 77 Ill. 109; Herring v. Ervin, 48 Ill. App. 369.

23 Radley v. Seider, 99 Mich. 431, 58 N. W. 366; Confrey v. Stark, 73 Ill. 187.

24 Mulcahey v. Givens, 115 Ind. 286, 17 N. E. 598.

Torts Vol. II-59

support of one dependent upon such person is withdrawn, there is deemed to be a sufficient proximate cause, unless the crime can be traced to some other cause.

25

Many things may contribute to a diminution of resources which, if caused by the intoxication of anyone, will give rise to a cause of action against the person selling the liquor or those held liable with him under the statute. It will suffice here to enumerate but a few, as illustrations may be drawn from a great variety of cases. So if a husband becomes a spendthrift,26 or loses his situation and is unable to obtain employment,27 or has become injured and on this account is unable to work,28 or becomes insane, or that he neglects his business, and does not, on that account, support his wife,30 or remains away from home and disposes of large amounts of money which are needed for the support of his family,31 there is considered to have been a loss of means of support. So, too, when an infant, upon whom his mother depended for support, becomes crazed by drink, and wanders into a river and is drowned, it is held to be a loss covered by the statute.32

29

§ 486. Death Resulting from Sale of Intoxicating Liquors. In regard to the question as to whether death resulting from the sale of intoxicating

25 Beers v. Walhizer, 43 Hun, 254; Blatz v. Rohrback, 42 Hun, 402; Wightman v. Devere, 33 Wis. 570; Volans v. Owen, 74 N. Y. 526, 30 Am. Rep. 337; Neu v. McKechnie, 95 N. Y. 632, 47 Am. Rep. 89; Mulford v. Clewell, 21 Ohio St. 191; Woolheather v. Risley, 38 Iowa, 486; Homire v. Halfman, 156 Ind. 470, 60 N. E. 154.

26 Ward v. Thompson, 48 Iowa, 5SS.

27 Roth v. Eppy, 80 Ill. 283.

28 Mulcahey v. Givens, 115 Ind. 286, 17 N. E. 598.

29 Mulford v. Clewell, 21 Ohio St. 191.

30 Jockers v. Borgman, 29 Kan. 109, 44 Am. Rep. 625.

31 Hill v. Berry, 75 N. Y. 229.

82 Boos v. State, 11 Ind. App. 257, 39 N. E. 197.

liquors shall be deemed an actionable loss under the statutes, there has been some confusion among the courts. A few states-Massachusetts, Ohio, and West Virginia-hold that death is not such an injury as is contemplated by the statute.33 The majority of courts, however, hold that if the death is the proximate and natural result of intoxication, the person whose resources and support is diminished by such death may recover therefor under these statutes.33a These latter courts, however, hold that the death complained of must be a proximate result of the intoxication; so if the death result from a fight, or from an accident through the breaking of the harness and running away of horses,35 where one is crushed by a rolling barrel in a wagon, where he was lying in a drunken stupor,36 or is run over while wandering upon a railway track under the influence of liquor, the intoxication is deemed too remote a cause. 37 The cases first mentioned which hold that death is not such a consequence as is included or intended to be included by the statute base their views upon the fact that the statutes do not expressly give a right of action for such death, and as there is no action at common law against

34

or

33 Davis v. Justus, 31 Ohio St. 359, 27 Am. Rep. 514; Kirchner v. Meyers, 35 Ohio St. 85, 35 Am. Rep. 598; Barrett v. Dolan, 130 Mass. 366, 39 Am. Rep. 456; Pegram v. Stortz, 31 W. Va. 220.

33a Mead v. Stratton, 87 N. Y. 493, 41 Am. Rep. 386; Schmidt v. Mitchell, 84 Ill. 195, 25 Am. Rep. 446; Schrader v. Crawford, 94 III. 357, 34 Am. Rep. 236; Sellars v. Foster, 27 Neb. 118, 42 N. W. 907; Roose v. Perkins, 9 Neb. 304, 31 Am. Rep. 409, 2 N. W. 715; Fink v. Gorman, 40 Pa. St. 95; Neu v. McKechnie, 95 N. Y. 632, 47 Am. Rep. 89; Gran v. Houston, 45 Neb. 813, 64 N. W. 245.

34 Schugart v. Egan, 83 Ill. 56, 25 Am. Rep. 359. See Schmidt v. Mitchell, 84 Ill. 195, 25 Am. Rep. 446.

35 Smith v. People, 141 Ill. 447, 31 N. E. 425.

36 Krach v. Heilman, 53 Ind. 517.

37 Collier v. Early, 54 Ind. 559.

anyone for a death which was caused by him, in order to enable a recovery for such a death, the right to do so must be expressly given by the statute.38

§ 487. Who may Maintain the Action. This right of action is not limited to the wife alone, nor, in some states, even to the members of the family, but may be claimed by outsiders who have been dependent upon the person whose support of them has been diminished.

The most frequent illustrations are of wife or child, as the statutes have been enacted chiefly for their benefit; but in some states the right to sue has been given to a husband,39 a father,40 or mother,41 or a poor relation,42 and it has been held that when a statute gives an action to "every wife, child, parent, guardian, husband, or other person" injured, the latter phrase includes all who are injured, whether within the special relationship mentioned or not; 43 and under the construction an employer may sue for loss of services suffered through drunkenness of his employee.44

38 See cases ante, note 33.

39 Moran v. Goodwin, 130 Mass. 158. 39 Am. Rep. 443. 40 Warren v. Englehart, 13 Neb. 283, 13 N. W. 401.

41 McClay v. Worrall, 18 Neb. 44, 24 N. W. 429; McNeil v. Collinson, 130 Mass. 167; Eddy v. Courtright, 91 Mich. 264, 51 N. W. 887. 42 Fitzgerald v. Donoher, 48 Neb. 852, 67 N. W. 880.

43 Flower v. Witkovsky, 69 Mich. 371, 37 N. W. 364. See Duroy v. Blinn, 11 Ohio St. 331; Northern Pac. Ry. Co. v. Whalen, 3 Wash. Ter. 452, 17 Pac. 890; English v. Beard, 51 Ind. 489; Bodge v. Hughes, 53 N. H. 614.

44 Duroy v. Blinn, 11 Ohio St. 331.

CHAPTER XXXII.

INJURY TO COMMON-LAW RELATIVE RIGHTS CONTINUED CONSPIRACIES IN RESTRAINT OF TRADE.

§ 491.

§ 492.

Contracts in restraint of trade-The rule of law.

Contracts in restraint of trade-Elements of illegality-Illustrations.

493. Monopolies and trusts-The various forms considered, with legal consequences-The original form.

§ 494. Same continued-The one corporation.

§ 495. Same continued-Combinations by various kinds of contracts.

§ 496. Same continued-Associations between manufacturers and

§ 499.

The tests of illegality of contracts in restraint of trade and monopolies.

500. Tests of illegality continued-Form of organization-Merger of corporations into one, and other methods.

§ 501.

Tests of illegality-To what extent trade may be pushed. § 502. Conspiracy-Action for.

§ 503. The civil action in tort.

§ 504. Same continued-The cases reviewed.

§ 488. Subject, How Treated.--The subject of this chapter of such vast importance to the people at this time-will of necessity be considered only in respect to individual rights, or individual wrongs, ex delicto, as affected by restraints in or conspiracies. against, trade. In doing this it will be necessary to go far enough into the topic, as will enable us to point out both the public and private wrong. No