McVey v. Williams

Mr. Justice Wright delivered the opinion of the court. This suit was brought by appellee against appellant to recover under the provisions of section eight of the dram-shop act, a reasonable compensation for taking charge of and providing for an intoxicated person, such intoxication having been caused, as alleged, by liquors supplied by appellant. The jury by which the cause was tried gave its verdict to appellee and awarded her damages at $30, and the trial court having denied the motion of appellant for a new trial and given final judgment upon the verdict, he prosecutes this appeal, and to reverse this judgment, argues that the court admitted improper evidence upon the trial, rejected pertinent evidence offered by him, misdirected the jury in its instructions and refused to properly advise the jury as requested by him, and also that the verdict is against the law and the evidence. Appellee is the wife of Charles M. Williams, and the evidence tends to prove that, while they lived together as husband and wife, the latter was frequently intoxicated from liquors obtained at appellant’s saloon, and when so intoxicated appellee took care of and provided for him. It was objected by appellant on the trial to the proof of more than one occasion of intoxication, because, it is urged, as there was but one count in the declaration, there could be a recovery for but one debt under a penal statute, such as the dram-shop act is. While it may be the rule that an action of debt to recover statutory penalties requires a separate count for ehch penalty sought to be recovered, yet we think the present action is not to recover a penalty, but merely for compensation for services performed, rendered necessary bv the act of appellant producing the intoxication of the person cared for, and hence the argument of '.counsel is based upon a misapprehension. Upon examination of the declaration we think it sufficient to admit the proof of the several periods of intoxication .that was admitted, and the objection to such evidence was properly overruled. It is also insisted by counsel for appellant that after the court had admitted evidence of general intoxication of appellee’s husband and the amount of money he .spent at appellant’s saloon, it erred in rejecting proof of his general soberness and industry. We would be better satisfied had the trial court allowed answers to the questions to which objections were sustained. We find, however, the court placed the ruling expressly upon the ground that to have done so would be a repetition of previous statements of the witness, and to some extent we think this would be so; but the evidence on this point was not as full as appellant was entitled, and were the damages found by the jury much larger, we would be constrained to hold the ruling of the court in this respect prejudicial error; but in view of the small amount of damages returned, we can not say the error, if such it was, was harmful, and appellant’s complaint that the damages are excessive is, in our opinion, without merit. Much criticism is made against the instructions, but we find upon examination the law was fairly given to the jury, and as fully as appellant’s rights demanded, and all. that was proper in the refused instructions was contained in those given by the court at request of appellant. It is especially complained the court refused to instruct the jury that under section 8, chapter 68, in relation to husband and wife, neither husband nor wife shall be entitled to recover any compensation for any labor performed or services rendered for the other, whether in the management of property or otherwise. This statute, in our opinion, has no relation to an action of this kind, and applies only to suits between husband and wife, and the instruction was properly refused. It is also contended generally by appellant that the wfife can not maintain the present action, but should be relegated to her remedy under section 9 of the statute under consideration, and further, being under obligation to care for her husband, she has no right of recovery. Sections 8 and 9 of the dram-shop act are wholly different in their subjects. The provisions of the former are in the interests of the intoxicated person alone, and the latter affords a remedy to others who may be injured by reason of such intoxication, or by an intoxicated person. The duty of the wife to care for her husband, we think, "furnishes no excuse or justification to others to add the burden of intoxication and the incidental cares it brings, and then say the wife must alone bear them. We think whatever additional care was brought upon the wife because of the intoxication of the husband was of proper substance for a reasonable compensation under the statute, and upon this point, which was the real question in issue, the jury was accurately instructed both at the request of appellee and appellant. It is also insisted the verdict is not supported by the evidence; but upon examination we feel compelled to say the jury were fully warranted in their finding. Finding no reversible error in the record and proceedings of the Circuit Court, its judgment will be affirmed.