Davis v. Justice. ing against abuse. Our own statute of 1851, like those of other States where the common law is recognized, imposes restrictions on the right to sue, limits the amount of recovery, designates the party in whose name the action must be prosecuted, and directs the disposition of the amount recovered among the intended beneficiaries. These conditions and limitations are not only manifestations of legislative wisdom, but would seem to be demanded by common prudence; whereas, in the statute before us, these wise and prudent precautions are wholly wanting. Under it a multiplicity of actions for the same wrong is authorized, and the amount of recovery is unlimited. When the terms of the statute under consideration are considered in the light of these circumstances, we are fully satisfied that the legislature did not intend to give the plaintiff below an action for an injury resulting from the death of her husband. Judgment reversed and cause remanded. NOTE BY THE REPORTER. -In view of the comparative novelty of the statute and the importance of the question, we give below the dissenting opinion of BOYNTON, J.: BOYNTON, J. I dissent from the judgment of the court. The construction given to the statute, in my judgment, violates both its letter and its spirit. It violates its letter in disregarding the plain meaning of the language which declares that in all actions brought under its provisions, the offending party shall be liable “for all damages sustained, as well as exemplary damages." That it violates its spirit is clearly manifest from an examination of its various provisions, and their consideration in the light of the evils sought to be avoided by their enactment. By section 6, S. & C. 1432, it is provided that every person, who, by the illegal sale of intoxicating liquor, shall cause the intoxication of any other person, such person shall be liable for and compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, and one dollar a day in addition thereto; and this liability covers the period the person intoxicated is kept in consequence of such intoxication. By section 7, as amended in 1870 (67 Ohio L. 102), the civil liability attaches where the liquor unlawfully sold causes the intoxication only in part. By section 10, amended by the same act, the exemptions of property from levy and sale, both real and personal, provided for by the "act to exempt the homestead of families from forced sale on execution to pay debts" (S. & C. 1145; 66 Ohio L. 48; 68 id. 106), are expressly withheld and disallowed, and all the estate of the debtor, except a few specified articles of personalty, is liable for the payment of the judgment. Neither a homestead nor any prop erty in lieu thereof is exempt from levy or sale to satisfy any judgment rendered under the statute. These provisions clearly indicate a purpose on the part of the legislature to require the seller, and the owner of the premises when liable, to make full and adequate compensation in damages, to the party injured through their violation of the statute. In full accord with this purpose, and to carry the same into effect, this court held in Schneider v. Hosier, 21 Ohio St. 98, that in all actions under said section (7), in which the plaintiff shows a right to recover damages actually sustained, the jury may also assess exemplary damages without proof of actual malice or other special circumstances of aggravation. This holding was soon followed by Mulford v. Clewell, id. 191, in which it was held that "means of support relate to the future as well as to the present. It is enough if she (the * wife) show that the sources of her future support have been cut off, or diminished below what is reasonable and competent for a person in her station in life. * The health of the husband and his ability to labor are often, to a greater or less extent, the means of the wife's support. In many cases to destroy these is to destroy her means of support. To take away the husband's power to accumulate means of future support for his wife is, within the meaning of the law, to injure her in her means of support." It is now said, in the face of these provisions and of this ruling, and notwithstanding the emphatic language of the statute that makes the seller liable for all damages sustained through his wrongful act, that inasmuch as the husband lost his life in consequence of the intoxication no recovery can be had. The very flagrancy of the seller's act, judged by the light of the consequences that resulted from it, is made to shield him from liability. The argument in support of this position is founded on the assumption that, had the legislature intended a liability to arise where the unlawful sale resulted in death it would have expressed such intention in terms more unmistakable than those employed; and on the further assumption that the act of March 25, 1851 (S. & C. 1139), giving a right of action where death has resulted from the wrongful act, neglect, or default of another, affords, and was intended to afford, the only remedy provided for all cases where death ensues. The answer to these positions is decisive against their validity. It is a rule of interpretation universally accepted that in giving a construction to a statute the court will consider its policy and the mischief to be remedied, and give it such an interpretation as appears best calculated to advance its object by effectuating the design of the legislature. Wilber v. Paine, 1 Ohio, 255. It is equally well settled that where the legislature has employed explicit and unambiguous terms to express its purpose and object, the ordinary meaning of such terms is to be adopted. Gardner v. Collins, 2 Pet. 93. In Brower v. Hunt, 18 Ohio St. 341, it was said, adopting the language of STORY, J., in Gardner v. Collins, that," what the legislative intention was can be derived only from the words they have used, and we cannot speculate beyond the reasonable import of their words. The spirit of the act must be extracted from the words of the act, and not from conjectures, aliunde." It is not doubted that cases frequently arise where, to give effect to the manifest intention of the legislature, it becomes the duty of the court to modify, restrict, or enlarge the common or ordinary meaning of the language employed. This duty arises when it is made to appear that, to give effect to the ordinary meaning of the language used, will not carry into operation the legislative will. But a departure from the rule requiring an adherence to the ordinary signification to the terms employed can only be justified where it becomes necessary to restrain or enlarge such meaning in order to carry out the manifest design of the statute. "Where the intention of the legislature is doubtful, the literal and obvious interpretation of the terms of the statute ought to be adhered to." Burgett's Adm'rs v. Burgett, 1 Ohio, 469. In Corwin's Lessee v. Benham, 2 Ohio St. 43, it was said by RANNEY, J., "that the usual import of words is sometimes to be restricted, where it would otherwise extend beyond the subject-matter and spirit of the whole enactment. But this cannot be done because the legislature did not foresee or contemplate every case upon which it might operate. The wisest legislators would fall far short of such foresight. If within the language, it must appear clearly to the court that the case would have been excluded if foreseen." And in Woodbury v. Berry, 18 Ohio St. 456, in language equally clear and emphatic, it is declared that, "where the words of a statute are plain, explicit, and unequivocal, a court is not warranted in departing from their obvious meaning, although from considerations arising from language outside of the statute it may be convinced that the legislature intended to enact something different from what it did enact." In the present case, the right of Mrs Justice to recover all damages she sustained by the wrongful act of the plaintiff in error, whether such act caused the death of her husband or not, is not only clearly given by the language employed, but such language, in its ordinary meaning, is clearly expressive of the design of the legislature, and is in complete and perfect harmony with the spirit and policy of the statute The correctness of this interpretation is not at all affected by the act of 1851. affords no relief, and was intended to furnish none in this class of actions. That act To have Davis v. Justice. amended that act, so as to embrace actions of this kind, would have been an innovation upon its policy, and a departure from the principles upon which it is founded. It is indispensable to the right to recover under that act, that the deceased himself should have been free from fault contributing to his injury. The act, neglect, or default must have been such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof. S. & C. 1140. A moment's reflection will satisfy the mind that no recovery could be had in such case for an injury resulting from an illegal sale of intoxicating liquor. A person injured while in a state of intoxication voluntarily assumed will not be permitted in a court of justice to recover damages for an injury that his own voluntary act brought upon him. And where he could not recover, no liability arises. There is, therefore, no foundation for the argument, that, if a recovery could be had under the act of 1854, as amended in 1870, there would be two statutory rights of action for the same cause. But even if this were so, it would not justify the conclusion claimed. The 7th section of the act of 1854, as amended in 1870, gives several rights of action for the same cause. The wife and each child, if severally injured in their person, property, or means of support, by the intoxication caused by the seller, may maintain several actions for the same unlawful act. If a person while intoxicated injures fifty men, each of them may maintain an action against the person whose unlawful sale of liquor eaused the intoxication. In such case the statute makes the seller a joint wrong-doer, as much so as if he were present aiding and abetting the unlawful act of the person intoxicated. The argument of counsel for the plaintiff and the judgment of the court seem to be founded on the mistaken notion that the action is brought to recover damages for the death of the husband. Such is not the case. The wrongful act which constitutes the ground of the action is the illegal sale of the liquor causing the intoxication from which the injury results. The death of the husband only affects the measure of damages. It destroys his ability to labor, and thereby diminishes the wife's means of support. If the husband had lost both his arms or legs, or become permanently insane, in consequence of the intoxication, or had otherwise become permanently disabled to perform physical labor, and had survived, the result to the wife would have been precisely the same. Her injury, in either case, would consist in the deprivation of the means of support resulting from the loss of her husband's ability to labor. There is not the slightest foundation in reason or justice for an intention upon the part of the legislature to authorize a recovery for an illegal sale causing intoxication resulting in injury, where death does not follow, and to refuse damages where death results. Indeed, there is much more reason to award damages for the injury in the latter case than in the former. That the legislature intended to authorize a recovery in the one case and not in the other is an assumption not only not warranted by, but in clear contravention of the express provisions of the statute. The argument that the wife has lost nothing, because a dead man cannot labor, proves nothing. Neither can a man labor that has lost his limbs. Moreover, it would be strange, indeed, if he whose unlawful act caused the death of another, could urge the fact in defense, that the circumstance of death destroyed all ability to labor, and consequently operated to exempt him from a liability otherwise existing. The reason that, at common law, no recovery could be had for death caused by a wrong ful act, did not, as stated, grow out of any difficulty in ascertaining the amount that ought to be recovered. It rested upon the ground that the act producing death was a felony which merged the civil liability. That this was the reason why the common law recognized no liability where death thus resulted, is clearly shown by the authorities. Howk v. Minnick, 19 Ohio St. 462; Boston and Worcester Ry. v. Dana, 1 Gray, 96; Higgins v. Butcher, Yelv. 89; White v. Spettigue, 13 M. & W. 603; 1 Chitty's Cr. 5; 12 East, 413. This reason does not prevail with us, nor in many, if any, of the American States. But it matters little one way or the other, what the common-law rule may be, or upon what foundation it rests, the statute under which the action below was brought declares the party injured entitled to all damages sustained, as well as exemplary, which result from the illegal act of the seller, and very clearly, in my judgment, embraces all those that follow from the intoxication, whether death supervenes or not. The judgment ought to be affirmed. The drawer of a check delivered it to the payee, intending thereby to give to the payee the fund on which the check was drawn. Held, that until the check was either paid or accepted, the gift was incomplete; and that in the absence of such payment or acceptance, the death of the drawer operated, as against the payee, as a revocation of the check.* OTION for leave to file a petition in error. M° Action on check. Rhoda Wylie, the mother of the plaintiff, was living with the plaintiff, and while lying sick she signed and delivered to the plaintiff her check on defendant as a gift. Mrs. Wylie died before the check was presented. Before it was presented, and before the defendant knew it had been given to the plaintiff, a brother of the plaintiff was appointed administrator of the deceased, and notified the defendant of his appointment, and directed it not to pay the check. Two days afterward, the plaintiff presented the check, and demanded payment, which was refused on the ground of the drawer's decease, and of the direction from the administrator not to pay the check. The money was afterward paid to the administrator, and the plaintiff then instituted this suit. The court in its charge told the jury that if the check was a gift to the plaintiff, and without consideration, it would be proper for them to take into consideration, in making up their verdict, whether the administrator, by notifying the defendant not to pay the check, did not revoke the gift; that if the check was a gift, the maker had the right to revoke it at any time before the subject of the gift had passed into the actual possession of the plaintiff, and that the administrator had the same right. The defendant had judgment. On error, this judgment was affirmed in General Term; and the object of the present proceeding is to obtain the reversal of these judgments. * See Sheedy v. Roach (124 Mass. 472), 26 Am. Rep. 680, and note, 684. Simmons v. The Cincinnati Savings Society. Milton Sater, for the motion. A check drawn on a fund in a bank is an absolute transfer or appropriation of the amount named in the check to the holder, and becomes binding on the bank as soon as the bank is notified, provided the bank have sufficient funds of the drawer on deposit to pay it. McGregor v. Loomis, 1 Dis. 247; Morrison v. Bailey, 5 Ohio St. 18; Andrew v. Blachly, 11 id. 94; Stewart v. Smith, 17 id. 82; Dodge v. Bank, 20 id. 246-7; Munn v. Burch, 25 Ill. 35; Insurance Co. v. Stanford, 28 id. 172; Bickford v. Bank, 42 id. 238; Brown v. Leckie, 43 id. 497; Brown v. Lusk, 4 Yerg. 210; Van Bibber v. Bank, 14 La. Ann. 481; In re Brown, 2 Story, 513; 2 Daniel on Neg. Paper, §§ 1572, 1638. It makes no difference if the drawer dies before the check is presented for payment. McGregor v. Loomis, 1 Dis. 247; Roberts v. Corbin, 26 Iowa, 315; Lester v. Given, 8 Bush, 357; Buckner v. Sayre, 18 B. Monr. 745; Daniel on Neg. Paper, § 1643. As for what is an appropriation of a fund, see Hoyt v. Story, 3 Barb. 264. An appropriation is all that is necessary to transfer the possession of a fund, and any order, writing, or act which makes an appropriation is sufficient. Story's Eq. Jur., § 1047; Adams' Eq., § 54, note a; Smith's Manual of Eq. 244, 245; Morton v. Naylor, 1 Hill, 583; Clemson v. Davidson, 5 Binn. 392; Newby v. Hill, 2 Metc. (Ky.) 530; Chowne v. Baylis, 31 Beav. 351. The administrator of the donor would not have the right to revoke her gift. Stone v. Hackett, 12 Gray, 227; Adams' Eq., § 98. Goodman & Storer, contra. WHITE, C. J. We find no error in this case to the prejudice of the plaintiff. The question as to what are the rights of the holder of a check for value, against the drawee or drawer, does not arise in this case. Many of the authorities cited by counsel for the plaintiff relate to this question and need not here be considered. The plaintiff claims as the payee of a check delivered to her by the drawer, who intended thereby to transfer to the plaintiff, by way of gift, the fund on which the check was drawn; and the question is whether before the payment or acceptance of the check by the drawee, the gift was executed. It seems clear to us that until the check was either paid or |