Betting v. Hobbett , 1891 Ill. App. LEXIS 246 ( 1891 )

Harker, J.

This was an action on the case brought by appellee under the 9th section of the Dram Shop Act to recover for injury in her means of support in consequence of the intoxication and death of her husband produced by liquor sold to him by appellants.

There was a trial by a jury which resulted in a verdict and judgment for §2,000.

The evidence in the record shows that Olson Hobbett, the deceased husband of appellee, a strong and healthy man of twenty-five years, early in the afternoon of February 3, 1890, in company with several companions, began drinking at the saloon of Betting and continued to drink there and at the saloon of Whitman, until he became very much intoxicated. The saloons of Betting and Whitman were the only ones in the town of Leland, and it was clearly proven that the liquors prodncing the intoxication of the deceased were furnished him by the appellants or by their servants with their knowledge. The drinking continued all afternoon, until about seven o’clock, when the deceased, in a very drunken condition, started home in company' with three of his companions, and while passing along the track of the C., B. & Q. R. R. Co. was run over and killed by a passing freight train.

Under the evidence in the case no other conclusion can be reached than that the death of Olson Hobbett was the result of the intoxication .produced by liquors sold and given him by appellants, and that appellee has been injured thereby in her means of support. The pleadings and the evidence were sufficient to support a verdict for actual damages for appellee. IsTor would we be willing to say that the sum of §2,000 exceeds the amount of her actual damages. Such being our view of the case, the judgment should be affirmed, unless the giving of appellee’s second instruction is reversible error. That instruction is as follows:

“2. The court instructs the jury, as a matter of law, that in a suit brought by a wife or widow to recover for an injury to her means of support, caused by the intoxication of her husband, produced in whole or in part by intoxicating liquor sold or given to him by the defendant or defendants (if such facts are shown by the evidence), if it further appears from the evidence that in consequence of such act of causing such intoxication, and as a proximate result or consequence of such intoxication, so caused, she has sustained actual and real damages to her means of support, then the jury may, in addition to the actual damages shown, give exemplary or vindictive damages, unless it shall further appear from the evidence that such liquor was sold or given to the husband, not by the defendants, but by their agents or servants, and that the defendant or defendants had forbidden his or their said agent or agents to sell or give liquor to such husband, and did not know of, nor permit such sale or gift when made, in which case the defendants would not be liable to exemplary or vindictive damages.” (Given.)

The objection to this instruction is appellants’ chief contention. It is insisted in their behalf that there was nothing in the evidence to warrant the jury in awarding exemplary or vindictive damages; that for that reason, such an instruction was not applicable to the facts, and that inasmuch as the record does not show what proportion of the sum allowed was for actual damages and what proportion for exemplary damages, the verdict and judgment should not stand. From expressions .of opinion in reported cases by our Supreme Court we understand the rule in this State to be that to warrant the giving of exemplary damages the pi-oofs must show actual damage sustained, and aggravating circumstances attending the sale, or giving of the liquors. Freese v. Tripp, 70 Ill. 496; Meidel v. Anthis, 71 Ill. 241; Kellerman v. Arnold, 71 Ill. 632; Brantigam v. While, 73 Ill. 561.

It would be difficult to determine and enumerate the only matters in aggravation which would warrant the awarding of exemplary damages. Nor has any attempt in that direction been made in any of the published opinions.

Judge Breese in the opinion in Meidel v. Anthis mentioned two, but there is no pretense that they are the only ones. We feel safe in faying that the selling to a man, whom the seller knew to be in the habit of getting intoxicated, and the continuing to sell to one already intoxicated, so that the intoxication was increased and prolonged, would in either instance constitute a selling under aggravated circumstances within the meaning of the rule.

The evidence shows that Hobbett spent over five hours continuously in the two saloons of appellants; that he was under the influence of liquor at two o’clock; that he drank freely and became more and more intoxicated until he left for home at seven o’clock; that while in such a condition, appellants continued to deal out liquor to him, and that just as he left to go upon the railroad track where he met his death, he took a parting drink at Betting’s saloon. Sales made to him under such circumstances were sufficiently aggravated to warrant the awarding of exemplary damages. In other respects the instruction was faulty and should have been refused by the trial court, but, inasmuch as its only effect could be to autliorize the jury to award exemplary damages, and we are cf the opinion that this case is one in which snch damages are properly allowable, the judgment should not be reversed because of the faultiness of that instruction alone. Substantial justice has been done. The sum of §2,000 could not be regarded as excessive even as actual damages to appellee’s means of support.

We see no objection to the other instructions complained of, hut we can not refrain from saying that the instructions in this case were unnecessarily numerous and prolix. In a case where the facts and legal questions involved are so low and simple, such a practice is pernicious and calculated more to confuse than to aid the jury in arriving at a correct conclusion.

In the preparation of such a pi ass of instructions by counsel and the passing upon them during the rush of trial by the court, it would be almost miraculous if not a single instruction given contained a fault.

Judgment affirmed.