Kennedy Bros. v. Sullivan

C. B. Smith, J.

This was an action on the case brought by appellee against appellants, and a number of others, saloon keepers, charging them with having sold intoxicating liquors to her husband, Cornelius Sullivan, and causing his intoxication, and that while so intoxicated, and by reason thereof he was killed. The several defendants each pleaded the geueral issue.

Before a trial was reached one of the Kennedy Brothers died, and the suit was dismissed as to Stout, Kapler, Furer, Muldoon and McManus. There have been four trials of the case in the Circuit Court. At the May term, 1887, the jury found Herdklotz not guilty, and disagreed as to the other defendants—now appellants. Another trial was had at the September term, 1887, and the jui-y again failed to agree and were discharged. The case was again tried at the January term, 1888, and another disagreement followed and the jury again discharged. Another trial was had at the January term, 1889, resulting in a verdict for appellee for the sum of §1,800. A motion for a new trial by defendants was overruled by the court, and judgment entered upon the verdict, to which appellants excepted, and they now bring the record before us on appeal, and ask for a reversal of the judgment.

While many errors are assigned, only the following are relied upon and brought to our attention in the argument:

1. That the verdict is against the evidence.

2. That the court erred in giving plaintiff’s instructions.

3. That the damages are excessive.

4. Improper remarks made by counsel for appellee to the jury in the progress of the argument.

It appears from this record that Cornelius Sullivan was a farmer living in McHenry county—a married man, the head of a family and living with them, and carrying on a farm of 120 acres, and during a part of the season running a threshing machine. He was at the time of his death thirty-five years of age, and described by all the witnesses as a strong, robust, healthy man, with industrious and frugal habits save alone his appetite for intoxicating liquors. He provided well for his family and his wife swears they never wanted for anything. He had never been sick since he was married. He left surviving him his wife and two children, one seven and the other three years of age, all depending entirely on his labor in his lifetime for'support. The wife had no means of support of her own.

On Saturday afternoon, on the 17th day of April, 1886, Cornelius Sullivan left his home and his family, a sober, well and healthy man, full of life and vigor, driving his two-horse team to go to Woodstock to transact his business. On the next morning—Sunday—he was carried home to his family a lifeless corpse.

Appellants, Kennedy Brothers, and John McGee, were keeping saloons in the city of Woodstock on Saturday, April 17, 1886, and had been for some time, perhaps years before that, and were engaged in the businessof selling intoxicating liquors. Upon Sullivan’s arrival at Woodstock the first we hear of him and the first place he is found is at the saloon of John McGee drinking “beer” in company with others. At the time he took this first drink of beer at McGee’s saloon McGee himself was not in, but Byron Martin, who was in the habit of waiting on customers in the saloon when McGee was out—with McGee’s knowledge and consent—saw Sullivan and others go into the saloon, and he went in after them and gave them what they severally called for, and just as they had finished drinking and were walking out, McGee came in, and Martin told him he owed him twenty or twenty-five cents, and McGee responded “ all right.” Shortly after going out of McGee’s saloon, Sullivan was seen in at Kennedy Brothers’ saloon, drinking “beer,” treating others and being himself treated. From that time until about ten o’clock at night many witnesses testify to seeing him in both Kennedy’s and McGee’s saloon, drinking something at the bar—most of the witnesses testifying that they were unable to tell just what he drank, but took it to be some kind of beer. At about ten o’clock in the evening he was in Kennedy’s saloon boisterous and drunk. A little before that he was in at McGee’s saloon where he requested McGee to let him have a bottle of whisky. Just as this order was made, the witness who heard it stepped out; of the saloon, leaving Sullivan there with McGee. In a very short space of time Sullivan came out and as Sullivan and this witness walked away Sullivan drew a pint bottle from his pocket full of whisky and they each drank from it. This same bottle of whisky about half full was found in Sullivan’s pocket the next morning when he was found dead in the road. Witness Grove swears he saw him at both saloons the night he was killed and drank beer with him at McGee’s. Witness Udell, the sheriff, was with him in McGee’s about six or seven o’clock that evening and drank beer with him. He thought it was lager beer. Dr. Cook saw him the night of his death after nine o’clock in Kennedy’s saloon. He invited everybody in the room to drink with him. lie was boisterous and nobody paid any attention to his invitation and he then said he could beat any man at the game of “45.” He was not sober. He asked William Kennedy for some whisky but he (Kennedy) told him he had enough, but he (Kennedy) would give him some beer; but Sullivan said, “Go to hell with your beer; I don’t want it.” He broke up one game of “ 45.” “ I did not see Sullivan drink anything that evening. He was refused when he called for anything over the bar. I saw him after that night trying to get into his buggy. Both the Kennedys were in the saloon that night. I am a regular physician; knew Sullivan before. He was about six feet high and weighed about 180 pounds; a strong, vigorous man and healthy7.” Witness McCarthy swears that he drank beer with Sullivan about six or seven o’clock Saturday evening, either at McGee’s or Muldoon’s. Witness Thomas swears that he saw Sullivan drink beer at Kennedy’s the night he was killed, and that A1 Kennedy gave it to him. Witness Brush swears that he saw Sullivan drinking beer at Kennedy’s that night and that he saw William Kennedy give it to him. William Bindley swears that on that Saturday night about nine or ten o’clock he and others were in McGee’s saloon and that while there Sullivan came in and was given a glass of beer by Byron Martin, the same man who waited on him and others in the afternoon when he first came to town, in McGee’s saloon, and that McGee was then in the saloon himself, and that after Sullivan drank the beer he then asked McGee himself for a bottle of whisky; that the witness then turned and walked out behind the screens; that he heard nothing said by McGee or Sullivan but that he waited but a minute and Sullivan came out also, and that as they walked down the street Sullivan drew a full bottle of whisky from his pocket and that both witness and Sullivan drank twice from this bottle of whisky while on the street. Witness Sherwood swears that between eleven and twelve o’clock that night in front of his hotel in Woodstock he saw Sullivan in his buggy reeling drunk, and that some person not known to him was on the ground holding the lines, and that William Kennedy was holding the horses by the bits. This was the last time any one saw Sullivan alive. Next morning about eight o’clock he was found some distance from Woodstock in the road, dead. His horses had wandered from the middle of the road to the roadside, where one side of his buggy was run upon a bank, thereby causing it to overturn, throwing Sullivan out, and the iron arm of the buggy top falling directly across his throat in such manner as to choke him to death. The fatal bottle of whisky, half empty, was found in his pocket. When he was found his body was cold and stiff, indicating, as the physician said, that he had been dead several hours. The foregoing was the substance of all the evidence for appellee.

On the part of appellants John McGee testified on his own behalf, and denied selling Sullivan any intoxicating liquor on that day or night and denied authorizing Martin to sell him any. He also denied selling him the bottle of whisky. William Kennedy on his own behalf denied selling Sullivan intoxicating liquor on that afternoon or evening. In addition to this testimony some six or eight witnesses testify to being in at Kennedy’s about nine or ten o’clock engaged in playing cards, when Sullivan came in there in a boisterous manner, and that William Kennedy refused to let him have any liquor. Albert Kennedy, although charged under oath by some of appellee’s witnesses with selling Sullivan beer on that night, did not take the stand and deny it. Some of appellant’s witnesses also testify to seeing Sullivan getting beer and whisky at other saloons on that night. Under this state of the evidence counsel for appellant insist with great earnestness that there is no evidence to support the verdict, much less a preponderance of it. They insist that even if it be conceded that the proof shows that defendants sold “beer” to Sullivan, still there is no proof to show that such beer was an intoxicating liquor in fact, or such liquor as the law treats as intoxicating liquor.

We can not concur in this view. It is true there was a conflict in the evidence as to whether appellants sold Sullivan liquor. Two of the defendants directly deny making him any sale or gifts at all of anything, and they are supported by several other witnesses, who did not see any sales made, and some of whom heard at least one of the Kennedys refuse to sell him beer or whisky: bat this testimony is met by the direct and positive testimony of a number of witnesses who swear not only that these defendants sold Sullivan beer, and that they drank with him on several different occasions on that afternoon and night at both of these saloons, but that at McGee’s he bought a bottle of whisky.

In order to sustain this verdict it is by no means necessary that any witness should swear directly that the beer was lager beer or that it was intoxicating liquor in order to justify the jury in believing it was such. The result that follows the drinking was much more satisfactory proof of the character of the drink than the opinion of any witness, as to the name or quantity of what was given him. That Sullivan did drink beer at both of these saloons repeatedly that afternoon and night we think is abundantly proven by a number of witnesses, if the jury were willing to believe them, and that his intoxication quickly followed is not denied by any one, and that he was reeling drunk and wholly unable to take care of himself at eleven o’clock is abundantly proven. One of the Kennedys himself, seeing his helpless state, went with him to his buggy and helped him in and started him home, alone in the dead hours of the night with his team, utterly helpless. Whence this drunkenness? The learned counsel for appellants insist there is no proof of any sale of whisky. If this be so, then it is inevitable that the unnamed and foaming beer held in its rich coloring the fatal alcohol that stnpified the brain and dethroned the reason of its unhappy victim and lured him to an untimely and violent death.

It was the exclusive province of the jury in the first instance to determine where the truth was in the conflicting and contradictory statements of the various witnesses who testified. Their opportunities were infinitely better than ours for knowing who was testifying to the truth. If they believed the witnesses for the appellee, then there was abundant evidence to support the verdict. Courts will not and ought not, substitute their judgment for that of the jury upon questions of fact, unless they can clearly see that the jury has erred in its finding or that manifest oppression or injustice will follow. Wiggins Ferry Co. v. Higgins, 72 Ill. 514; C., B. & Q. R. R. Co. v. Lee, 37 Ill. 454.

The language of the above case has been repeated in several subsequent cases much stronger than that held in the above case. We are of the opinion that the verdict is sustained by the evidence in this record.

The second assignment of error is that the court erred in giving appellee’s instructions.

The first instruction given for plaintiff was as follows:

“ On the part of the plaintiff the jury are instructed that if they believe from the evidence that the plaintiff was the wife, and is now the widow, of Cornelius Sullivan, deceased, and that the said defendants or any or either of them, or the servants, employes, or any person acting for said defendants, or any or either of them, did, on the 17th day of April, A. D. 1886, sell or give to the said Cornelius Sullivan any lager beer or any other intoxicating liquor, and thereby in whole or in part caused the intoxication of the said Cornelius Sullivan, and the said Cornelius Sullivan, while under the influence of such intoxication, and in consequence thereof, lost his life in manner and form charged in the. declaration, and that the plaintiff was thereby damaged in her means of support, then the jury should find the defendants, or such of them as are proven to have contributed to such intoxication in whole or in part, guilty, and assess the plaintiff’s damages at such sum as they think from the evidence she ought to recover, not to exceed ten thousand dollars.”

It is first objected that this instruction is bad because it submits to the jury to de cide whether appellants sold the deceased, Sullivan, intoxicating liquor without any evidence to support that theory. This objection has been disposed of by what has been heretofore said. It is again objected that the instruction is bad under the facts in the case in using the expression that the defendants or any or either of them would be liable for sales made by themselves or “ any person aetmg for them,” which could only refer to the sales made by Martin for McGee, without being his regular clerk, or directly authorized to make the sales.

This position is equally untenable. If any person, whether regularly employed as a clerk, agent or servant, or not, goes into a saloon and sells or gives away intoxicating liquors with the knowledge and consent of the owner or keeper, or with his subsequent ratification thereof, the owner or keeper must be held responsible for these acts, and such person will be treated as his agent in making the sale or sales, or gifts, whether many or few. In this case the proof is clear that Martin was accustomed to go into McGee’s saloon when he was absent and wait on customers, and this with McGee’s knowledge and consent. In addition to this the proof is, he ratified the act of Martin in selling. Sullivan and others the liquor on the day preceding his death. When he was informed of the sale and that Martin had the money for him, he said “all right.” He saw the men in his saloon and saw Martin in there and it is not doubtful that he must have known what they were all in there for.

It is still further urged that this instruction is bad in saving to the jury, “that they might assess the plaintiff’s damages at such sum as they think from the evidence she ought to have, not to exceed ten thousand dollars,” in case the jury should believe from the evidence she was entitled to recover. It is insisted that this instruction is broad enough to allow the jury to give exemplary damages if they desired, and that there was no evidence in the case to justify the allowance of exemplary damages. It may be conceded that the instruction, while not in so many words telling the jury that if the evidence justified it they might award exemplary damages, still the jury, not being directed not to assess such damages, might do so under the general language of the instruction. The statute expressly allows the assessment of exemplary damages under certain circumstances, which, it has been determined by the courts, are in eases where the evidence shows any wilful, wanton violation of the law or disregard of the rights of others, or any oppression or reckless conduct (and whether there have been in the particular-case any wanton or wilful acts tending to show a wilful disregard of the rights of others or of the law is always in the first instance a question of fact for the jury), and when the jury finds any such wanton, wilful or oppressive conduct toward the injured party or deliberate and wilful violation of the law under the evidence, then the jury may, under such circumstances, in addition to the actual damages sustained, also assess exemplary damages. McNay v. Stratton, 9 Ill. App. 215; Wabash Ry. Co. v. Rector, 104 Ill. 296; Lowry v. Coster, 91 Ill. 182.

Does the proof in this case show such a wilful or wanton disregard of the right of Sullivan or his wife or children as to justify the jury in assessing exemplary damages ? Whether it was or not was a question of fact for the jury. The instruction left them entirely free to determine that question under the evidence, as held in Wabash v. Rector, supra, and Penn. Co. v. Frana, supra.

Sullivan’s wife testified on the trial, that for the last two years her husband had been a good deal addicted to drinking and frequently came home from town drunk. It appears also in the proof, that he was well known to these defendants, and it is not an unreasonable or unfair inference to draw, from the evidence in this case, that defendants, being saloon keepers, must have known his infirmity and habit of becoming intoxicated. But whether they knew it before that night or not, it is clear that they all knew he was drunk on that occasion, and it is equally clear, if plaintiff’s witnesses are to be believed, that they sold him some kind of intoxicating liquor after he became drunk and while he was going from one saloon to another asking for and obtaining liquor in defiance of the law prohibiting such sales, and in total disregard of the rights of Sullivan and his family. One of the Kennedys closes the night and its heartless chapter by sending this poor helpless victim of his greed out into the night and darkness, with his team, alone, seeing and knowing the man to be too drunk to take care of himself. It seems to us that, from this evidence, the jury might impose exemplary damages for wanton and wilful misconduct on the part of defendants, if they saw proper to do so, and that there was not error in leaving them at liberty to do so under the instruction.

But conceding now, that there was no evidence to justify the finding of exemplary damages and that the instruction was broad enough to allow such damages to be assessed, still we think no harm was done to appellants, since the verdict does not necessarily contain exemplary damages. The proof is uncontradicted that Sullivan was a man in the prime and vigor of life, in perfect health, stalwart and strong, an industrious hard-working man who made ample and generous provision for his wife and little children, in so much that they could say “ they never wanted anything.” Is such a life not worth $1,800 to a dependent wife and little children ? If this instruction, then, was in that respect technically erroneous, it did appellants no harm and they can not complain. We think there is no reasonable ground for saying that the verdict contained anything more than compensatory damages. What the life of Sullivan was worth to his widow and family was a question of fact left to the jury under the instruction, and we can not say they are net justified in finding that such actual loss was equal to $1,800.

In the ease of Wiggins Ferry Co. v. Higgins, supra, the same complaint was made, that the damages were excessive, and that punitive damages had been assessed; but the court say in reply to that objection, that “ even if this is true it has worked appellant no injury, as we see from the evidence that only compensatory damages were assessed * * * and we never reverse a judgment simply because an inaccurate instruction has been given when we can see that it has resulted in no injury to the party against whom it has been given.” And to the same effect is Meyer v. Pfeiffer, 50 Ill. 485. In the case of Penn. Co. v. Frana, 112 Ill. 398, there was no evidence to sustain exemplary damages, but that instruction, as in this case, required the jury to find their verdict from the evidence, and the court held, even if the instruction was broad enough to allow the jury to find punitive damages, still, as there was no evidence to that effect, it would not be presumed the j ury did so. We think there was no error in giving the first instruction.

Objections are also made to several other instructions given for appellee. We have carefully examined them all and the objections urged against them, and find the objections to be of a most unsubstantial and technical character. It would sub-erve no useful purpose to discuss them in detail. We think they are all substantially good and that they contain no prejudicial error to appellants.

Finally, it is urged that the judgment should be reversed on account of improper language used by counsel for appellee, in the argument before the jury. In the closing argument counsel for appellee said to the jury, “ A part of this Daly mortgage belongs to these Kennedys, where Sullivan made his headquarters for years.” Counsel for defendant objected to this language at once, and took an exception, and thereupon counsel for plaintiffs further said, “It was not in evidence and I withdraw the remark, and do not wish yon to consider it in making up your verdict.” While this remark of counsel was improper, still under the circumstances we can not see that defendants were prejudiced by it. It was promptly and frankly withdrawn and the jury requested to pay no attention to it. We assume the jury were men of ordinary intelligence and were willing to do their duty under their oaths, and try the case upon the evidence adduced, and not be influenced by remarks wholly foreign to the ease dropped by counsel in the moment of excitement and the heat of an argument. When counsel promptly withdrew any erroneous statements on their attention being called to it, and requested the jury to disregard it, the court will not regard such an error of sufficient magnitude to justify a reversal, unless the court can see that such improper argument has improperly influenced the jury. We think no such prejudicial result followed the use of the language complained of.

It is also urged that the damages are excessive. That assignment of errors has been considered when we were considering the instructions, and will not be further noticed.

After a careful and attentive consideration of this case, we have been unable to find any substantial error in the record. After four trials we should in any event hesitate to disturb the judgment except upon some substantial reason or ground affecting the justice or merits of the case, and failing to find such errors, and believing that substantial justice has been done, the judgment will be affirmed.

Judgment affirmed.