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The defendants made a motion for a new trial, which was overruled, and on February 27, 1885, judgment was rendered upon the verdict in favor of the plaintiffs, and against the defendants, for the full sum of $2,100 and all costs. The defendants excepted to the rulings and judgment of the court and bring the case here.

Hazen & Isenhart, Case & Moss, and Waters & Chase, for plaintiffs in error.

J. W. Campbell and H. C. Root, for defendants in error.

HORTON, C. J. This was an action for damages for injury to the means of support of plaintiffs below, defendants in error, arising from the sale and gift of intoxicating liquors to their father, Elias Pontious, alleged to have been sold and given to him by defendants below, plaintiffs in error, between May 1, 1881, and December 5, 1883. At the trial a verdict was returned in favor of plaintiffs below for $1,500 as actual damages and $600 as exemplary damages. Judgment was rendered thereon. To reverse this judgment defendants bring the case to this court. The action was brought under section 15, c. 128, Laws of 1881, known as the "Prohibitory Liquor Law," which reads as follows:

"Every wife, child, parent, guardian, or employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent, or guardian shall have a right of action, in his or her own name, against any person who shall, by selling, bartering, or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parents, guardian, or next friend, as the court shall direct; and all suits for damages under this act shall be by civil action in any of the courts of this state having jurisdiction thereof."

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It is first contended that said section 15 is unconstitutional for the reason that the title of the act is not broad enough to cover it. The title of the act is "An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific, and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.' This court has passed upon this question in the case of Werner v. Edmiston, 24 Kan. 147. That action was under section 10 of the act of 1868, entitled "An act to restrain dram-shops and taverns, and to regulate the sale of intoxicating liquors." Section 15 of the statute of 1881 was bodily transferred from the dramshop act of 1868. The prohibitory law of 1881 not only provides for prohibition, but also for the regulation of the sale of intoxicating liquors. The title of the act of 1881 is as broad as the title of the act of 1868, so far as embracing therein the provisions of said section 15; and the case of Werner v. Edmiston, supra, is therefore controlling.

It is next contended that there was a misjoinder of parties, and that several causes of action were improperly joined. This, upon the ground that said section 15 gives a right of action to every wife, to every child, to every parent, to every guardian, to every employer, and to every other person who is injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication; that as each parent, each child, and each guardian has a right of action independent of the other under the statute, the plaintiffs below had no right to join their separate causes of action into one action and to maintain that action jointly against the defendants.

In Palmer v. Waddell, 22 Kan. 352, this court decided that "where two or more persons have separate causes of action against the same defendant arising from the obstruction of a natural water-course, and the injury of their lands and crops thereby, they cannot unite in the same petition to recover damages for such injuries which are plainly distinct and unconnected.' Sections 35, 37, 38 of the Code. In Tate v. Railroad Co., 10 Ind. 174, it was said that "two or more persons having separate causes of action against the same defendant, though arising out of the same transaction, cannot unite; nor can several plaintiffs in one complaint demand several distinct matters of relief; nor can they enforce joint and separate demands against the same defendants." Iowa has a statute making the seller of intoxicating liquors responsible for the injurious results of his sales, substantially the same as our own in its provisions and effect. In Huggins v. Kavanagh, 52 Iowa, 369, S. C. 3 N. W. Rep. 409, which was an action by the wife against a defendant for injuring her and her family by selling intoxicating liquors to her husband, the supreme court, referring to the statute of that state, used the following language: "The statute gives a right of action to every child injured in its means of support, as well as to the wife. As each has a right of action, neither can recover for the damages sustained by the other; nor can the plaintiff's damages be increased because she has a large number of children, or diminished because she has none; for her right of action is based on the loss of means of her support, and not for the support of her children." In Sibila v. Bahney, 34 Ohio St. 410, in an action under the civil damage act of that state, similar to ours, the supreme court, in speaking of the rights of the wife, say:

"Her loss consisted principally in the injury to her means of future support. At the death of the husband, she was left in comfortable circumstances. Each child, five in number, has or had a like remedy for injury to its means of future support, resulting from the same acts of the defendant." The Maine law of 1872 contains the following section:

"Every wife, child, parent, guardian, husband, or other person who is injured in person, property, means of support, or otherwise, by any intoxicated person, or by reason of the intoxication of any person, has a right of action in his own name against any one who, by selling or giving any intoxicating liquors, or otherwise, has caused or contributed to the intoxication of such person; and in such action the plaintiff may recover both actual and exemv.8P,no.7-28

plary damages. The owner, lessee, or person renting or leasing any building or premises, having knowledge that intoxicating liquors are sold therein, are liable, severally or jointly with the person selling or giving intoxicating liquors as aforesaid. And, in actions by a wife, husband, parent, or child, general reputation of such relationship is prima facie evidence thereof, and the amount recovered by a wife or child shall be her or his sole and separate property." Section 4, c. 63, (Rev. St. Me. 1883, c. 27, § 49, p. 311.)

In that state, Peter McGee and wife, being the parents of James McGee, brought their action against John McCann for selling two glasses of whisky to their son, by reason whereof he became intoxicated; and, in trying to return home, fell upon the railroad track, where a passing train ran over him and cut off his left arm, rendering him unfit for manual labor, and thereby depriving his parents of their only means of support. Objection having been taken to the petition upon the ground that there was a misjoinder of plaintiffs, the court disposes of the matter as follows:

"The objection, we think, must prevail. The act of 1872, c. 63, § 4, gives to every parent who shall be injured in person, property, means of support, or otherwise, by any intoxicated person, or by reason of the intoxication of any person, a right of action in his or her own name against any person or persons who shall *** have caused or contributed to the intoxication of such person.' There is nothing in the statute which in any degree tends to change the ordinary principles of law as applicable to the maintenance of an action of this kind; hence a joint action in the name of two can be maintained only when their joint interest is invaded, or where they are jointly interested in the damages to be recovered. This seems to be a universal rule, and the apparent exceptions are not real ones. *** In the case at bar, the interest, as well as the injury, is several. The damage complained of is not to property, but to support. The support of the one cannot be that of the other. The injury to the one in this respect cannot be a direct injury to that of the other, though, in the case of husband and wife, it may be an indirect injury, but one for which an action would not lie. Here the plaintiffs do not declare as husband and wife, but as parents. As such, the injury to the one, and the amount to be recovered, might be very different from that of the other, for both the real and the exemplary damage might be very different. The language of the statute, so far from changing this principle of law, tends very decidedly to confirm it. Every parent thus injured shall have a right of action in his or her own name,' and the amount recovered by the wife or child shall be his or her sole and separate property.' If the parents may join, just as well might the children; for, in the same sense, they ali have community of interest." McGee v. McCann, 69 Me. 79.

Our statute says:

"Every wife, child, parent, guardian, employer, or other person who shall be injured in person, property, or means of support by any intoxicated person, or in consequence of the intoxication, * * shall have a right of action in his or her own name * * * for all damages actually sustained, as well as for exemplary damages," etc.

Therefore the foregoing decision from Maine is very much to the point and declares what, in our opinion, is the law applicable to the case before us as to the joinder of plaintiffs. The alleged wrongs of the defendants gave each of the plaintiffs a right to an action for the damages he had sustained, but did not give them any right to main

tain a joint action. The case is one in which separate actions should have been brought against the defendants; that is, one in which separate actions should have been brought by each of the plaintiffs. Our conclusion, therefore, is that there is a misjoinder appearing in the petition. See Swenson v. Plow Co., 14 Kan. 387; Hudson v. Atchison, 12 Kan. 140; McGrath v. City of Newton, 29 Kan. 364; Bort v. Yaw, 46 Iowa, 323; Hinkle v. Davenport, 38 Iowa, 355; Bartges v. O'Neil, 13 Ohio St. 72.

Counsel refer to Roose v. Perkins, 9 Neb. 304, S. C. 2 N. W. Rep. 715, and Kerkow v. Bauer, 15 Neb. 150, S. C. 18 N. W. Rep. 27, as holding that minor children may join in a case of this kind. An examination of these decisions and the statute of Nebraska shows that the cases cited are not applicable to actions brought under the statute of this state. Roose v. Perkins, supra, was decided in 1879; Kerkow v. Bauer, supra, in 1883. The statute in force in 1879 and in 1883, in Nebraska, reads:

"The person so licensed shall pay all damages that the community or individuals may sustain in consequence of such traffic. He shall support all paupers, widows, and orphans, and the expenses of all civil and criminal prosecutions growing out of or justly attributable to his retail traffic in intoxicating drinks," etc. Laws of 1873, § 576, p. 853.

The statute of that state further provides:

"It shall be lawful for any married woman, or other person at her request, to institute and maintain in her own name a suit on any such bond for all damages sustained by herself and children on account of such traffic, and the money, when collected, shall be paid over for the use of herself and children." Laws of 1873, § 577, p. 853.

Whenever the legislature of this state enacts a statute that the persons constituting one family may join in an action for the loss of means of support against those who have furnished the intoxicating liquor to the husband and father, the persons constituting one family may unite in bringing their action for loss of support; but under the existing statute this cannot be done. We cannot say that the union of the plaintiffs in the prosecution of their actions may not have prejudiced the rights of the defendants. This disposes of the case, and as the action cannot again be tried upon the pleadings as they now stand, owing to the misjoinder of the plaintiffs, we do not deem it advisable to pass upon the other questions presented, with the single exception that it seems necessary for us to say that the question of limitation of this class of cases was not intended to be decided in Jockers v. Borgman, 29 Kan. 109. This action, being upon a liability created by statute other than a forfeiture or penalty, is controlled as to limitation by the provisions of subdivision 2 of section 18 of the Code.

The judgment of the district court will be reversed, and the cause remanded.

(All the justices concurring.)

SUPREME COURT OF CALIFORNIA.

(67 Cal. 615)

TAYLOR and others v. CENTRAL PAC. R. Co. and others. (No. 9,802.)

1. FINDINGS EVIDENCE.

Filed October 29, 1885.

Findings reviewed, and held supported by the evidence.

2. SAME-CONFLICTING EVIDENCE.

Findings will not be disturbed where there is a substantial conflict in the evidence.

3. ADMITTED FACTS-FINDINGS ON.

Where facts are admitted by the pleadings findings thereon are not necessary.

4. ACTION FOR ASSIGNMENT OF CONTRACT FOR SALE OF LAND-EVIDENCE IN. In an action to compel a subsequent purchaser of land to assign a contract of the sale thereof, the vendor's declarations made without his knowledge and not in his presence are not admissible against him.

5. BONA FIDE PURCHASER-NOTICE OF EQUITIES.

In an action to recover land against one claiming to be a bona fide purchaser, where notice by him of plaintiff's equities is one of the questions at issue, he may testify that when he purchased the land he had no knowledge that such land was inclosed by plaintiff.

6. POSSESSION OF LAND-EFFECT AS NOTICE.

Possession of land, to constitute notice of the equities of the holder, must be actual, open, and notorious, exclusive and visible.

7. TRUSTEE-LIABILITY TO CLAIMANT UNDER CESTUI QUE TRUST.

A railroad company having contracted to sell land to a party stands in the attitude of a trustee holding the legal title for him, and if a plaintiff, seeking relief on a claim against the cestui que trust, is not entitled thereto, such plaintiff is not in position to enforce a deed from the trustee.

Commissioners' decision.

Department 1. Appeal from superior court, county of Tehama. John. F. Ellison, for appellants.

J. S. Matlock, Clay W. Taylor, and Creed Haymond, for respond

ents.

SEARLS, C. This is an action to compel Charles Davis, one of the defendants, to assign to plaintiffs a contract for the purchase of certain railroad lands, entered into by the Central Pacific Railroad Company with said Davis, and to require said Central Pacific Railroad Company to convey said land to plaintiffs upon their making full payment therefor. The cause was tried by the court without a jury, and upon the findings a judgment for costs was rendered in favor of defendant Davis. From this judgment, and from an order denying a new trial, plaintiffs appeal. Objection is taken to a portion of the fourth finding of the court, which is as follows:

"That heretofore, and prior to June 25, 1883, said defendant, the Central Pacific Railroad Company, issued and had distributed a circular by which it invited people to settle upon and improve its lands, and promised that should they do so the persons so settling and improving said lands, and who should file applications therefor, should be preferred purchasers for said lands when they were offered for sale by said company."

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