89 Ill. App. 437 | Ill. App. Ct. | 1900
delivered the opinion of the court.
This suit was before us in Lossman v. Knights, 77 Ill. App. 670, where the facts are stated. After its reversal the declaration was so amended as to leave Fidelia Knights the sole plaintiff. It is an action against Lossman & Gropp, keepers of a dram-shop, to recover for injury to plaintiff’s means of support, in consequence of the intoxication of her minor son, Howard Knights, produced by said defendants. Demurrer was sustained to several amended declarations. Thereafter an additional count was filed, to which a demurrer was overruled. Defendants elected to abide by said demurrer. They were defaulted for want of a plea to said additional count. A jury was impaneled which heard proofs, and assessed plaintiff’s damages at $625. Defendants cross-examined plaintiff’s witnesses, made objections and took exceptions to rulings upon the evidence and to the giving of plaintiff’s one instruction. Defendants did not move for a new trial or for a re-assessment of the damages, but entered a motion in arrest of judgment, which was overruled. Plaintiff had judgment on the verdict, and defendants appeal.
1. The demurrer and the default each admitted the facts stated in the additional count. The office of the jury was to assess the damages. It was not necessary plaintiff should prove each averment of the additional count. (Bing v. Tyler, 79 Ill. 248; Mass. Mut. Life Ins. Co. v. Kellogg, 82 Ill. 614.) It is claimed the damages are excessive. The question is not before us for want of a motion for a new-trial, nor are we prepared to say that under the evidence the award was greater than mere compensation.- But the additional count averred and the proof showed that plaintiff notified a member of the defendant firm that her son was a minor and not to sell him liquor any more, and thereafter defendants not only sold him liquor repeatedly and caused his intoxication, but also said defendant met the boy in the street, and told him that notwithstanding the notice from the mother they would -sell him liquor if he came to their place sober. This was calculated to entice the boy to their saloon, and showed the intoxication thereafter produced by them was willful, and warranted exemplary damages.
2. The objections to the rulings upon the evidence are not before us for want of a motion for anew trial, and they are not argued, and are therefore waived. The only objection argued against the instruction is, that it assumes certain facts not proved. The facts so supposed to be assumed were averred in the additional count and admitted by the demurrer; but the criticism is unfounded. The instruction did not assume the facts, but left them to the decision of the jury.
3. The suit was begun February 10, 1896. The additional count was filed June 15, 1899. It is argued the five years’ statute of limitations had run against certain averments of the additional count. The statute of' limitations was not set up by plea. The dates of sales of liquor by defendants to plaintiff’s minor son, and of his intoxication therefrom, and consequent squandering of his earnings and loss of employment, etc., were stated in the additional count under a videlicet, and plaintiff was not bound to prove them as laid; nor were all said dates five years prior to the filing of said additional count. Therefore, on demurrer, the additional count was not bad by reason of the statute of limitations.
4. The additional count, after showing that plaintiff’s husband had abandoned his wife and son prior to the grievances complained of, stated that Howard was plaintiff’s minor son, and was in the actual custody and control of plaintiff, and contributed toward plaintiff’s support and maintenance, and did earn and was well able to earn money to support himself and contribute to the support of plaintiff $25 per month, and that said earnings belonged to plaintiff, and that Howard would have paid her such earnings toward her means of support, but for the acts of defendants complained of; that defendants were dram-shop keepers at Sycamore, and at divers times at their dram-shop and rooms adjoining sold and gave Howard intoxicating liquors, after being forbidden so to do by plaintiff; that in consequence thereof Howard became intoxicated and dissipated and formed habits of intoxication and squandered his earnings; and by reason of such intoxication caused by defendants, contributed but a small portion of his earnings toward the support of plaintiff; that defendants by such selling and giving of intoxicating liquors to Howard, caused him to contract the habit of drinking intoxicating liquors and to become intoxicated and dissipated, and thereby caused him to squander his earnings, and on account thereof he contributed only a small portion of his earnings toward the support of plaintiff, by means whereof plaintiff was injured in her means of support. , It further averred that by reason and in consequence of Howard’s intoxication so produced, his capacity and ability to labor and earn money for the support of plaintiff was greatly lessened, and he was unable to and did not obtain steady employment, and in consequence thereof plaintiff was injured in her means of support, and that she was a poor person, etc. The averments were much fuller than we have stated. The statute, so far as applicable to this case, is as follows:
“ Every * * * parent * * * who shall be injured in * 'x' * means of support * * "x' in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally and jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole or in part, of such person or persons.”
The count stated, and the demurrer admitted, that Howard’s earnings belonged to plaintiff; that defendants pro-' duced Howard’s intoxication by sales of liquor to him; that in consequence of the intoxication so produced, Howard squandered these earnings belonging to plaintiff; that in consequence of such intoxication his capacity to earn wages was also lessened and he was thereby rendered unable to and did not obtain steady employment, and that plaintiff ivas thereby injured in her means of support. The argument here made that plaintiff was not entitled to her son’s wages and that their loss did not injure her means of support, can not prevail against the admissions of the demurrer. We are of opinion that the additional count states a cause of action for injury to plaintiff’s means of support in consequence of the intoxication of her minor son, caused by liquor sold him by defendants. The judgment is therefore affirmed.
