Baker v. Summers

• Decision Date: 18 February 1903
• Citation: 66 N.E. 302,201 Ill. 52
• Parties: BAKER et al. v. SUMMERS.
• Court: Illinois Supreme Court

201 Ill. 52

66 N.E. 302

BAKER et al.

v.SUMMERS.

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from appellate court, Third district.

Action by Emma Summers against Baker & Reddick. From a judgment of the Appellate Court (103 Ill. App. 237) affirming a judgment for plaintiff, defendants appeal. Reversed.

Herrick & Herrick and Lemon & Lemon, for appellants.

Marshall C. Griffin, George K. Ingham, and C. C. Leforgee, for appellee.

CARTWRIGHT, J.

This is an action on the case, originally brought by P. M. Smallwood, as administrator of the estate of Harry Summers, deceased, in the circuit court of De Witt county, against the appellants, who are partners in the business of keeping a saloon in the town of Weldon, in said county. A demurrer to the declaration having been sustained, the appellee, Emma Summers, was substituted as plaintiff, and filed an amended declaration, containing five counts. The action was for injury to her means of support on account of the death of her husband, Harry Summers. The general issue was pleaded, and upon the trial there was a verdict for the plaintiff on the first, third, fourth, and fifth counts of the amended declaration, and the damages were assessed at $2,500. Judgment was entered on the verdict, and the Appellate Court for the Third District affirmed the judgment.

It was alleged in each of the counts that plaintiff was the wife of Harry Summers, that he was shot and killed by one Marcum, and that plaintiff was thereby deprived of her means of support. The first count further alleged that defendants were engaged in selling intoxicating inquors; that they sold such liquors to Harry Summers, in consequence of which he became intoxicated, and by reason of his intoxication he, without reasonable and probable cause, unlawfully assaulted Marcum, upon whom he sought to inflict great injury, and thereupon Marcum shot and killed him. The next count, on which the verdict was based, was the third, in which it was alleged that defendants sold Harry Summers intoxicating liquors, causing his intoxication, and in consequence thereof he became quarrelsome and abusive, and issued a challenge to fight Marcum, and, being unable to use ordinary care in his own behalf, became involved in a quarrel, which he provoked by reason of his intoxication, and was killed by Marcum. The fourth count charged the sale of liquors by the defendants to Marcum, causing his intoxication, and alleged that in consequence of such intoxication he assaulted and killed Summers. The fifth count charged the sale of intoxicating liquors by defendants to both Marcum and Summers, causing the intoxication of both, and alleged that in consequence of such intoxication they became unable to exercise ordinary care in their own behalf, and engaged in a fight, and, in consequence of their intoxication, Marcum shot and killed Summers.

The evidence tended to prove the following state of facts: Harry Summers was the husband of plaintiff. The defendants kept a saloon in Weldon, and there was a gambling room, run by Dick Greenwood, above the saloon. There was no communication between the saloon and the gambling room. Access to the gambling room was by an outside stairway. Summers had been drinking on the day of his death, in defendants' saloon, and went to the gambling room about 11 o'clock and engaged in playing poker. He remained there until after 2 o'clock, when he was killed. During this time he and others gave money to one of the employés of the room, who went downstairs and bought liquor in the defendants' saloon, and brought it up to the gambling room, where it was drank by Summers and his associates. This was repeated several times, and Summers was under the influence of the liquor. There was a controversy between Summers and C. C. Murdock, one of the other players, over a jackpot that Murdock had won. Summers claimed that Murdock had not put in a sufficient number of chips, and Murdock reached over to count the chips, when Marcum came into the room. Marcum was a stranger in Weldon, and a farm hand living in the country near there, but was an acquaintance of Murdock's. He had also been drinking liquor at defendants' saloon. Marcum spoke to Murdock, and, while it is difficult to tell from the evidence just what he said, it was probably to this effect: ‘How are you making it? If you are in the right, stick to it, or, if in the wrong, let it go.’ This angered Summers, who asked Marcum what he had to do with it, and Marcum replied, in substance, that he had a good deal to do with it. Summers sprang up, saying he could whip Marcum, and rushed at him, throwing off his coat. He struck Marcum in the face, and Marcum, with one arm raised to ward off the blow, fired two shots from his revolver held in the other hand, and killed Summers. Summers was a carpenter and contractor, and one of the board of trustees of the town of Weldon.

On the trial, John Lisenby, president of the town board of Weldon, was called and examined as a witness on behalf of plaintiff, for the purpose of showing that he had called the attention of the defendant Baker to the fact that a gambling room was being conducted in the place where the killing occurred. The defendants objected to the questions put to the witness on that subject, but their objections were overruled, and he testified that he had called Baker's attention to the fact a year or more before Summers was killed. Defendants moved to strike out the answer, but their motion was denied. It is plain that this testimony did not tend in any degree to sustain plaintiff's cause of action, or to prove the issue on her part. It was proved that Summers was the husband of plaintiff, and that he was killed by Marcum,...