29 Kan. 109 | Kan. | 1883
The opinion of the court was delivered by
This was an action brought under the 10 th section of the dramshop act, (ch. 35, Comp. Laws 1879,) in which the defendant in' error (plaintiff below) recovered ajudgment.of $1,000 actual damages, and $400 exemplary damages against the plaintiff in error, for having caused the intoxication of her husband.
I. It is alleged the court erred in overruling the motion to make more specific and certain the allegations of the petition as to the second, third, fourth and sixth grounds therein. It appears from the record that the petition was filed on. April 13, 1881. On the 14th day of May succeeding, plaintiff in error filed a motion containing six grounds, to make more specific and definite certain of the allegations of the petition. Upon the hearing, the court sustained the motion as to the first and fifth grounds. Thereupon defendant in error was allowed thirty days in which to amend the petition.
II. At the term at which the cause was tried, plaintiff in error moved the court for judgment in his favor upon the pleadings. This was overruled, and upon the trial he objected to the defendant in error offering any evidence, for the alleged reason that the amended petition did not state facts sufficient to constitute a cause of action. These rulings are ■now complained of. It is the theory of plaintiff in error that as the dramshop act had been repealed prior to the trial, such repeal destroyed any right of action that might have existed during the existence of the statute; and Dillon v. Linder, 36 Wis. 344, is referred to in support of this doctrine. This authority, when fully considered, is not in opposition to the ruling of the trial court. Subdivision 1 of §1, ch. 104, Comp. Laws 1879, reads:
“The repeal of a statute does not revive a statute previously repealed; nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
Section 10 of ch. 35, Comp. Laws 1879, under which this action was brought, was taken up bodily and transferred to ch. 128, Laws of 1881, which repealed said chapter 35, Comp. Laws 1879. Sec. 15 of ch. 128, Laws of 1881, is identical with §10, ch. 35, Comp. Laws 1879. Therefore the provisions of §15, ch. 128, Laws 1881, being the same as those of §10, ch. 35, Comp. Laws 1879, must be construed as a continuation of such provisions, and not as a new enactment.
III. It is contended that the court below erred in permitting counsel to ask certain witnesses as to their best recollection whether or not they had seen John Borgman drink any liquors, or under the influence of liquor., at plaintiff in error’s saloon within two years prior to April 13, 1881. The witnesses referred to are Jacob Bern's, Andrew Oswald, and Matt. Oswald. The first witness answered that it was his best impression that he had not seen Borgman drink at the saloon within two and a half years before he went away, but probably had within three years, but could not say for certain; that he kept no record. The second witness answered that he had probably seen Borgman at plaintiff in error’s saloon under the influence of liquor within two years before he went away. The third witness answered that he could not say, but presumed he had. Portions of the answers were not responsive to the questions, and if injurious to the plaintiff in error, would doubtless have been stricken out, if a motion had been made therefor. The questions themselves were proper, especially as the witnesses interrogated showed a disposition to evade answering to facts within their knowledge. Oral evidence is after all only the uttered or spoken statement of existing facts or past transactions, and the witness in making his statements under oath of a past event, relies wholly upon his memory or recollection. Therefore if he gives his best recollection of a
. IV. Upon the trial, the defendant in error testified that in the spring of 1878, she found her husband at plaintiff in error’s saloon, sitting in a chair, drunk, and that then she notified plaintiff in error that she wished he would not sell her husband any more liquor; that this was the only hotifi.cation. This evidence was objected to, as being incompetent, irrelevant, and immaterial. The objection is mainly based upon the fact that this notification was given more than two years prior to the commencement of this action. Certainly the calling of the attention of plaintiff in error to the drunken condition of the husband by the wife, and notifying him not to sell the husband any more liquor, were material facts to go before-a jury upon the question of exemplary damages; and whether such notification was given during th'e two years before the commencement of the action, or a little earlier, is immaterial.
V. It is urged that the first instruction was erroneous and misleading. It is as follows:
“If from the evidence you believe that the plaintiff had been for the last ten years the wife of John Borgman; that for - several years previous to the commencement of this suit he was habitually intoxicated; that within two years before the commencement of this action the defendant sold or gave to him intoxicating liquor, and thereby caused his intoxication in whole or in part; that by reason of said intoxication the said John Borgman was rendered .incapable of performing and transacting his ordinary business; that the plaintiff was dependent upon him for support; that in consequence of said intoxication she has been injured in means of support, then you will return a verdict for the plaintiff for such damages as from the evidence you may believe she has sustained in consequence thereof.”
This instruction 'is sustained by the provisions of said § 10} ch. 35, Comp. Laws 1879, excepting that part directing the
VI. Great complaint' is made of the eighth instruction given by the court, mainly upon the ground that it informed the jury that defendant in error was entitled to recover exemplary damages whether she had sustained actual damages or not. This objection is without force, because the court in one of its instructions expressly charged the jury that exemplary damages could not be recovered until the defendant in error had established, by a preponderance of evidence, that she had received actual damages to her means of support, by reason of the intoxication of her husband, caused within two years next preceding April 13, 1881,,by the act of plaintiff in error, in selling, bartering or giving to her husband intoxicating liquors. Therefore, as all the instructions are to be taken and considered together, the eighth instruction is not subject to the complaint against it. i
VII. Complaint is also made of the direction to the jury, “that direct loss of employment by the said John Borg-man, in consequence of intoxication, the proceeds of which would naturally, except for his intoxication, go to the support of plaintiff, would be actual damages.” Counsel say that this instruction would be correct only when the defendant in error’s
Borgman was morally and legally bound to supply his wife with the necessaries and comforts of life, and if he had no other resource, it was his duty to contribute his labor and its proceeds to her support. It is evident that his intoxication caused him to neglect his business, made him habitually indolent, and deprived him of employment. As he had during the past few years no means of support except his own labor, and as his intoxication incapacitated him from labor and also caused him to lose employment, the wife was injured “in means of support,” because any deprivation of her right or interest in the proceeds of his labor or his capacity to labor, was an injury to her in her means of support. (Schneider v. Hosier, 21 Ohio St. 98.) The loss of her means of support in consequence of the intoxication of her husband was to her actual damages. The injury to the means of support of a married woman, caused by the sale of intoxicating liquors to her husband, by which he acquires habits of intemperance and idleness, may vary greatly according to the age, condition and circumstances of herself and husband. Therefore evidence in such cases that the husband was a sober, industrious man, providing for and supporting his family prior to the time when the defendant caused his intoxication by selling to him intoxicating liquors, and after such sales and in consequence thereof he became less industrious than he had been before; that such sales caused him to neglect his business or work, or squander his means to any extent, so as to decrease the means of support of his wife, is admissible, and the jury may be instructed to take these circumstances into consideration, on the question of damages. (Dunlavey v. Watson, 38 Iowa, 400.)
“That a fact admitted is the same as a fact conclusively proved; that in this case plaintiff admits that she signed voluntarily and of her own accord, divers and sundry petitions for defendant and several other persons to sell intoxicating liquors in Hanover, where she and her husband lived, and for the same time included in the pleadings and shown by the evidence in this case.”
Instruction fifteen reads:
“That if the plaintiff contributed to the intoxication of her husband, either by drinking with or encouraging him to drink, or by providing means whereby he could and did obtain intoxicating liquor, that in that case she cannot recover.”
These instructions were properly rejected. During the time the dramshop act was in force, the sale of intoxicating liquors by a party having a dramshop, tavern or grocery license, was lawful, and a person signing a petitioner recommendation that the party applying for such a license was a fit person to keep the same, did not thereby consent that the party obtaining the license might sell intoxicating liquors contrary to the provisions of the act, or might injure others by selling, bartering or giving intoxicating liquors without being liable for damages. The most that can be said is, that the defendant in error assisted the plaintiff in error by her signature to obtain for him a license to sell liquors under the terms of the statute. But by signing his petition, she did not authorize him to barter, sell or give intoxicants to her husband or any other person in violation of the statute, nor by so acting did she consent that he might injure her in person or property, or means of support, by intoxicating her husband. (Jackson v. Brookins, supra.) The instruction about contributing to the intoxication of her husband by drinking with or encouraging him to drink, or by providing him means whereby he could obtain intoxicating liquors, was not supported by evidence, as defendant in error was not guilty of such conduct at any time within two years prior to the commencement of this action,
IX. The eighteenth instruction, which was refused, is:
“The court instructs the jury that if they find from the evidence the defendant sold the plaintiff’s husband intoxicating liquor within two years prior to April 13, 1881, at a time when he was sober, and that’ at such times plaintiff’s husband did not become intoxicated, they should not consider such sales in determining the amount of plaintiff’s recovery.”
It has already been decided by this court, that it is no defense to an action brought under §10 of the dramshop act, that the intoxication was caused partly by liquor sold by other parties. It is enough, if the liquor sold by the party complained of was the direct cause, either in whole or in part, of the intoxication. (Werner v. Edmiston, 24 Kas. 147.) The instruction prayed for would have enabled the jury to return a verdict for plaintiff in error, although the intoxicating liquor sold to Borgman was the direct cause of subsequent intoxication ; because where two glasses of liquor are sold by two different parties, and intoxication follows therefrom, no analysis can correctly apportion the causes between the two sales. The statute holds each responsible for the result caused by the two separate sales. (Werner v. Edmiston, supra.) Borg-man may have been sober at the times that plaintiff in error made some of the sales, and at such' times did not become intoxicated ; but if upon another glass 'being sold by another party, he did become intoxicated, in part from the liquor first furnished, both parties are responsible for the result. If Borgman had taken one or more glasses of liquor at the saloon of plaintiff in error, which did not at once intoxicate him, and before its effect however had passed 'off, he obtained other glasses of intoxicating liquor from other saloons,
Further, the evidence is very conclusive that during the two or three years before Borgman left his family, he was-under the influence of liquor most of the time. . One witness testified that “he drank badly for two and a half years before the trial;”, another, that “he was drunk three-fourths of the time;” another, that “for two years prior to April 13, 1881, he was under the influence of intoxicating liquor more of the time than he was sober;” another testified that “when he was acting justice of the peace, upon a trial he was so-drunk as to go to sleep while the attorney was arguing the case before him;”, another, that he “drank a great deal, and that he had seen him drinking at all of the saloons in town.”' Considering therefore the habits of Borgman, a sale of intoxicating liquor to him at any time within two years prior to-April 13, 1881, could scarcely be said not to have contributed in part to his intoxication; so in any view the instruction was not prejudicial.
X. Several instructions asked by plaintiff in error were given as requested, excepting the court eliminated therefrom the word “credible” before “evidence.” This was not erroneous. The instructions were in an unusual form, and the-word credible seems to have been inserted before evidence, to mystify rather than to instruct the jury. If the plaintiff in error had wished the jury to be directed “that they were the
Counsel dwell at length upon the question of exemplary damages. They contend that the doctrine of awarding such damages is wrong in principle. It is also insisted upon, that as § 6 of the dramshop act makes it a misdemeanor for one to sell liquors to a person in the habit of becoming intoxicated, after having received notice thereof, that therefore exemplary damages cannot be allowed, because the wrong done is an offense punishable by indictment or information, and if exemplary damages be awarded a party is punished twice for the same offense. The statute expressly authorizes the recovery of damages coextensive with the injury, and likewise exemplary damages. Therefore in sustaining exemplary damages jin cases of this character, we are not engrafting upon the law. In sustaining such damages we are only executing the law as enacted. In answer to the claim that if exemplary damages are allowed, the wrong-doer is liable to be punished twice, we cite as decisive, Wiley v. Keokuk, 6 Kas. 94. See also Titus v. Corkins, 21 Kas. 722.
Counsel in commenting upon the decisions of this court awarding exemplary damages, contend that the question should be reconsidered. Where the statute expressly authorizes the recovery of exemplary damages, the authorities are with this court. In Indiana in an early case, the court held that where the sale was illegal, thus rendering the seller liable to a criminal prosecution, he coqld not be punished with vindictive damages in a civil action. (Struble v. Nodwift, 11 Ind. 65.) But it has been since held that the act of 1873 of that state has expressly abrogated this rule. (Schafer v. Smith, 4 C. L. J. 272.) In the latter case it was said: “While it is admitted that the.general assembly of this state, in the enactment of the said twelfth section of the aforementioned act, intended to and did give a right of action to the person mentioned in said section, for the recovery, not only of actual damages, but also of exemplary damages, it is urged by appellant that the gen
It is not clear to our minds that the amount of exemplary damages recovered is excessive; and'as the amount of such damages is left to the sound discretion of the jury, subject to be controlled by the court when the discretion is abused, and not finding such discretion abused,- considering all the circumstances of this case, we cannot disturb the verdict. 1
Some minor matters are submitted in the briefs of counsel, but it is unnecessary to comment upon them. After an examination of the record, and a full consideration of all the questions submitted, we perceive no error prejudicial to the interests of the party complaining.
The judgment of the district court will therefore be affirmed.