Kennedy Bros. v. Sullivan

Mr. Justice Baker delivered the opinion of the Court: This was case, by Hannah Sullivan, the appellee, against appellants, who were the keepers of dram-shops, for selling and giving away intoxicating liquors to Cornelius Sullivan, her husband, which caused his intoxication and death, where'by she was injured in her means of support. The result of a jury trial was verdict and judgment in favor of appellee for 11800 damages, and that judgment was affirmed by the Appellate Court for the Second District. The judgments below have eliminated from the case the claims of appellants that the evidence did not sustain the verdict, and that the damages assessed, were excessive. Complaint is made of some of the instructions given to the jury at the instance of appellee. It is objected to several of said instructions, that they assume that there was some evidence that intoxicating liquors had been sold or given to the deceased by the defendants, or one or more of them. It would be strange, indeed, if the jury, the trial court and the Appellate Court had, all three, found that to exist as a fact which there was no evidence even tending to prove. The claim there was no such evidence, is based upon theories too refined for application in the administration of practical and substantial justice. The matter does not seem to require any other or further consideration from us, unless it be to add, that there was, without doubt, great conflict in the testimony; but that only presented questions for the determination of the jury. Two other criticisms are made upon the first of the instructions. One of these is, that it tells the jury, that if they believe, from the evidence, “that the said defendants, or any or either of them, or the servants, employes or any person acting for said defendants, or either of them, did sell or give,” etc. The objection challenges the expression, “or any person acting for said defendants, or any or either of them, ” on the ground it wholly ignores the question of authority. The word “for” means “in the place of,” and from the word, as commonly used, an implication of authority arises, but the implication is not a necessary implication. It must be admitted that the phraseology used is not happily selected; but the instruction must be read in the light of the evidence, and thus read, it can have application only to the sales made by Martin in the saloon of McGee. The proof is clear that Martin was accustomed to go into the saloon of McGee, when the latter was temporarily absent therefrom, and wait on customers,—and this with the knowledge and consent of McGee. From this uniform course of conduct there was an implied authority to Martin, in the absence of directions otherwise, under like circumstances of absence, to make sales of liquors for and as the authorized agent of McGee. Besides this, in numerous other instructions given to the jury, they were explicitly informed, in various forms of expression, that it was a condition precedent to a verdict of guilty against the defendants, or either of them, that they or he, either in person, or by agent, servant or employe, sold or gave to the deceased intoxicating liquor, which caused, in whole or in part, the intoxication which occasioned his death. It is manifest that the inaccuracy contained in the said first instruction could not and did not mislead the jury, or injuriously affect the rights of appellants, or either of them. The other objection urged to said instruction is, that it tells the jury that they may, if they find for the plaintiff, and that she was damaged in her means of support, “assess her damages at such sum as they think, from the evidence, she ought to recover, not to exceed $10,000.” This was not an explicit statement to the jury that they might, if they saw fit, award exemplary damages, but the language used was broad enough in its terms to include exemplary damages. Where the evidence shows a willful or wanton violation of the law, or reckless and illegal acts and conduct in utter disregard of the rights of others, exemplary damages may be assessed in addition to the actual damages sustained. The section of the statute upon which this action is predicated, expressly authorizes, in cases where actual damages are sustained, the recovery of exemplary damages also, if the circumstances justify such recovery. Lowry v. Coster, 91 Ill. 182; Hackett v. Smelsley, 77 id. 109; Roth v. Eppy, 80 id. 283. The evidence shows that Cornelius Sullivan was a man who was “in the habit of getting intoxicated,” and it justifies the conclusion that such fact was fully known to all the defendants. Any sale or gift of intoxicating liquor to him was therefore unlawful. So, also, there is evidence to the effect that on the night in which he met with the accident by which he was killed, and after he became drunk, the defendants sold him intoxicating liquors in their saloons. The sales, if made, were willful violations of the law which forbids such sales to a person who is intoxicated. It was a question of fact, for the jury to determine, whether or not the defendants had been guilty of willful, wanton, reckless and unlawful misconduct. We are not prepared to hold, under the circumstances of the case as disclosed by the testimony, that it was error to give to the jury an instruction under which, if they thought it just'and proper, they might allow exemplary damages. In that which we have already said we have anticipated the objection that is made to instruction six for appellee. Suffice it to add, that we do not regard that instruction as erroneous. The testimony was to the effect, that upon the night in question Sullivan drank both whisky and beer. In instruction eight the jury were told, that in determining whether the beverage called “beer,” that certain witnesses had sworn that Sullivan drank in the places of the defendants, was of an intoxicating character or nature, they had a right to take into consideration certain facts and circumstances in relation thereto which had been shown by the evidence, and which were specifically designated in the instruction, and which tended to prove that such beer was an intoxicating liquor. It is claimed that the instruction left entirely out of view certain contradictory evidence, and therefore should not have been given. It is to be noted that the instruction did not summarize certain facts testified to, and inform the jury that from them they could determine whether or not the liquid was an intoxicant. On the contrary, it expressly told them to take into consideration “all the facts and circumstances proven in relation thereto, ” and after the summary, again directed them to consider “any other facts and circumstances proven by the evidence in relation thereto.” It can not justly be said that the testimony not particularly specified was, by the charge of the court, left out of consideration. The instruction was of a kind for which we have no special admiration, but we can not say that it was error to give it. The other criticisms made upon said instruction are of too technical a character to merit discussion. We must confess our inability to comprehend the point of the objection urged to instruction eleven. The remaining assignment of error of which we have cognizance is, that the trial court erred in allowing improper remarks by counsel for plaintiff, in the argument of the case, against the objection of the defendants. It appears from the record that in his closing argument to the jury, the attorney for the plaintiff said: “A part of this Dacy mortgage belongs to these Kennedys, where Sullivan had made his headquarters for years to which statement the defendants objected, and asked to take an exception, whereupon the attorney for the plaintiff further stated to the jury: “It was not in evidence, and I withdraw the remark, and do not wish you to consider it in making up your verdict.” It is admitted that the remark was improperly and inadvertently made. It was promptly withdrawn as soon as challenged, and the jury requested not to take it into consideration. The court gave no instruction and made no ruling in regard to it, nor was it asked so to do. It is difficult to see in what respect the court was at fault, or how or in what way it committed an error in the premises. It might, it is true, have awarded a new trial, but in our opinion it was not its duty, under the circumstances, to set aside the verdict on account of a statement not based on the evidence, which was withdrawn almost as soon as made, and by which the verdict was, in all human probability, wholly uninfluenced. It is very improbable that a jury would, in making up a verdict, under their oaths, give any weight whatever to a mere statement of counsel not based on the evidence, and which the same counsel forthwith admitted to be baseless, and requested them not to consider. We find no manifest error in the record. The judgment of the Appellate Court is affirmed. Judgment affirmed.