Ackerman v. Kogut

• Decision Date: 02 October 1951
• Docket Number: No. 363,363
• Citation: 117 Vt. 40,84 A.2d 131
• Parties: ACKERMAN v. KOGUT et al.
• Court: Vermont Supreme Court

Page 131

84 A.2d 131

117 Vt. 40

ACKERMAN v. KOGUT et al.

No. 363.

Supreme Court of Vermont.

Oct. 2, 1951.

Rehearing Denied Nov. 14, 1951.

Fayette & Deschenes, Burlington, for plaintiff.

Louis Lisman, Burlington, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

BLACKMER, Justice.

This is an action for damages under V.S. 1947, § 6214, which gives to a person who is injured by an intoxicated person a right of action against a person who by selling or furnishing intoxicating liquor unlawfully has caused in whole or in part such intoxication. Trial was by jury, with verdict and judgment for the plaintiff. The defendant Kogut filed her bill of exceptions. Since she is the only appellant, the words 'the defendant' when they appear below refer to her alone.

The plaintiff alleged that the unlawfulness of the sale consisted in a violation of Regulation No. 18 of the Liquor Control Board, which reads: 'No alcoholic liquor shall be sold or furnished to a person apparently under the influence of liquor.' The damage for which recovery was had below was caused by one Willette. The defendant moved for a directed verdict on the ground that there was no sufficient evidence that Willette was 'apparently' under the influence of liquor at the time the jury found that she sold or furnished intoxicating liquor to him. The motion was denied, and the denial is the first assignment of error.

The plaintiff's evidence tended to show the following facts. On Saturday, August 13, 1949, after work Willette went to a restaurant where he drank heavily for two hours. He then went to the defendant's restaurant, known as the Champlain Grill, arriving about 7:30 P.M. When he arrived he was feeling the effects of the drinks he had had. At the Grill he had one or two drinks of beer. During his stay there he either has no memory of what happened, or a very clouded memory. While at the Grill, he visited the men's room and staggered en route. A little before eight P. M. he left the Grill. At this time he had been drinking noticeably. He has no memory of anything which happened after he left the Grill until about 2 A. M., the last three hours of which period he was asleep in a chair at the police station. Immediately after leaving the Grill he engaged in a short conversation with a friend; got into his automobile; drove the automobile down the left side of Battery Street in the City of Burlington at a speed of forty to fifty miles per hour; drove almost to the left curb of the street; he was stooped over the wheel; narrowly missed hitting head on an automobile proceeding in the opposite direction; drove to the left of a silent policeman at the intersection of Battery and Pearl Streets; at 8:05 P.M. collided with the plaintiff near the silent policeman and while still on the wrong side of the street; failed to stop and render assistance; turned onto a side street; hit and slightly damaged a parked truck, and thereupon abandoned his automobile. A little after 8:00 P.M. he appeared at a filling station with his sister, who was holding him up; he was staggering quite a bit. At this time he endeavored to put through a telephone call, but could not make the operator understand the number he wanted. While his sister placed the call for him, he sat with his head down on a desk. He had had too much to drink. At about 8:30 his face was flushed, his eyes bloodshot and his clothes disarranged. There is no evidence tending to show, nor claim made, that Willette had anything to drink after leaving the Champlain Grill.

The evidence detailed is ample to support the jury's finding that Willette was 'apparently' under the influence of intoxicating liquor when the defendant served him beer. 'Apparently under the influence of intoxicating liquor' means apparently under the influence of intoxicating liquor in the slightest degree. State v. Hedding, 114 Vt. 212, 215, 42 A.2d 438; State v. Storrs, 105 Vt. 180, 185, 163 A. 560. Loss or confusion of memory is a symptom of drunkenness. Glaister, Medical Jurisprudence and Toxicology, 5th Ed., 560. Intoxication may be evidenced circumstantially by prior or subsequent condition of intoxication within such a time that the condition may be supposed to be continuous. 2 Wigmore, Evidence, 3d Ed. § 235. This accords with our rule that an inference may be and often is retroactive; a trier may from present conditions infer a previous fact. Cross v. Passumpsic Fibre Leather Co., 90 Vt. 397, 407, 98 A. 1010.

Recognition of the fact that a person is in a drunken or intoxicated condition requires no peculiar scientific knowledge. 20 Am.Jur., Evidence, § 876. True enough, there is no direct evidence that Willette was apparently under the influence of intoxicating liquor at the precise moment that beer was served to him. Yet the picture painted before the jury indicated a state of gross drunkenness over all and at the time he was in the Champlain Grill. Courts and juries in weighing evidence are to calculate on probabilities, not possibilities. Miller v. People, 216 Ill. 309, 74 N.E. 743. To our mind the jury found not only the probable fact, but the highly probable fact, when it concluded that the defendant 'showed his liquor' at the appropriate time.

It is pressed by the defendant that for the jury to infer that Willette was under the influence, and also to infer that such was apparent, is basing an inference on an inference. We take the view that intoxication and the degree thereof are so intertwined as to constitute but one inference. But if they were deemed separate inferences, one is not built upon the other, but each is drawn from the same evidence, and therefore permissible under the rule in Gero v. John Hancock L. Ins. Co., 111 Vt. 462, 480, 18 A.2d 154. Error in the denial of the motion for a directed verdict does not appear.

The trial court charged the jury that the credibility of the witnesses and the weight to be given to their testimony was entirely for the jury's determination, and asked the jury to consider whether it was probable in the natural course of events that the witnesses could and would have heard and seen correctly, remembered accurately, and testified truthfully. The court then proceeded to charge: 'It is your duty to reconcile conflicting testimony if you can upon the theory that all the witnesses have sworn to the truth, but if you cannot do so then you are to determine from all the evidence before you which of the witnesses is entitled to the greater credit. Oftentimes, one or more persons, witnesses of a certain occurrence, differ in their narratives of what occurred and that difference is not the result of any untruthfulness but from the fact that they either saw or heard it from a different standpoint or else they remembered it differently. In fact, because of human nature this is usually the case in situations where there are numerous details that are or may be observed. The average person cannot observe and remember each detail in such situations accurately.'

To this latter part of the charge the defendant excepted on the ground that the charge as to 'duty' was in effect an instruction that there is a presumption that witnesses speak the truth. Our attention is directed to Mullaney v. Goss Co., 97 Vt. 82, 86, 122 A. 430, were it was held that there is no presumption that witnesses testify truly and not falsely.

We recognize the principle of Mullaney v. Goss Co., supra, as valid, but it is not controlling here. It is a well established rule that it is proper to instruct that it is the duty of the jury to reconcile, if possible, all of the evidence, and not needlessly to impute perjury to any of the witnesses. Annotation, 127 A.L.R. 1385, 1406. The last mentioned rule was recognized in Bates v. Cilley, 47 Vt. 1, 4, where this charge was approved: 'as a general rule where witnesses differ, if you can give a solution of it which will be satisfactory to your minds upon the theory that they all intend to tell the truth, that is generally a safer way of reconciling testimony, than it is to reconcile it upon another theory, which must involve the finding that witnesses on one side or the other had committed perjury, and sworn to what they knew was not true.' Perhaps the words 'A safer way' as used in Bates v. Cilley, supra, are preferable to the word 'duty' used by the trial court. But we will not put the court below in error over a choice of words when the substance is the same, particularly when the use of the word 'duty' is sanctioned by the books. The situation here presented is very much the same as that in Shores v. Simanton, 99 Vt. 191, 198, 130 A. 697. No error appears.

The defendant briefs an exception concerning the trial court's definition of 'intoxication' in its charge. Taking the charge as a whole, as we must, Gould v. Gould, 110 Vt. 324, 329, 6 A.2d 24; Lancour v. Herald & Globe Ass'n, 111 Vt. 371, 382, 17 A.2d 253, 132 A.L.R. 486, the jury were instructed: 'Where one by reason of his indulgence in intoxicatin liquor has ceased to retain full control of his faculties of mind and body, he is under the influence of intoxicating liquor, and the extent to which he has lost the use of his physical and mental powers is not material upon this question. * * * Intoxication is the impairment of the capacity to think and act correctly and efficiently caused by the use of intoxicating liquor. * * * Intoxicated as used in law means more than being under the influence as we have explained that term.' The exception was that the definition of intoxication was the same as the definition of being under the influence of intoxicating liquor. The exception does not stand up, because as set forth above the court clearly told the jury that intoxicated means more than being under the influence. The use of the noun in one place and the adjective in another was not calculated to confuse or mislead the jury. True enough, an adequate definition of 'intoxicated' wa...