Boniewsky v. Polish Home of Lodi

• Decision Date: 23 February 1926
• Docket Number: No. 18.,18.
• Citation: 132 A. 202
• Parties: BONIEWSKY v. POLISH HOME OF LODI.
• Court: New Jersey Supreme Court

132 A. 202

BONIEWSKY

v. POLISH HOME OF LODI.

No. 18.

Supreme Court of New Jersey.

Feb. 23, 1926.

(Syllabus by the Court.)

Action by Josefa Boniewsky, administratrix of her deceased husband, against the Polish Home of Lodi. After verdict for plaintiff, defendant obtained a rule to show cause why a new trial should not be granted. Rule discharged.

Argued March term, 1925, before PARKER and KATZENBACH, JJ.

Joseph J. Weinberger, of Passaic, for plaintiff.

Peter J. McGinnis, of Paterson, for defendant.

PARKER, J. This case is founded on chapter 257 of the Laws of 1922 (P. L. p. 628), whose purport is quite fully expressed by its title. That title reads as follows:

"An act providing for a right of action to recover damages in cases where injury to person or property, means of support or otherwise, is caused by any intoxicated person, or by reason of the intoxication of any person, or by reason of the sale or procuring of intoxicating liquor in violation of law; providing for the survival of such right of action in the event of the death of any person who may have suffered or inflicted such injury, and fixing the method of distribution of damages that are recovered where death results from intoxication or from the sale or procuring of intoxicating liquor in violation of law."

The plaintiff, both as general and special administrator of her deceased husband, sued for damages because his death, as she claimed, was due in whole or part to intoxicating liquor furnished him by the defendant, which is a corporation not for pecuniary profit, in effect, a social club. The jury found a verdict "in favor of the plaintiff, Josefa Boniewsky, administratrix, etc., against the Polish Home of Lodi, a corporation, for the sum of $100; and in favor of Josefa Boniewsky and two children, Stella and Jennie, against the Polish Home of Lodi, a corporation, for the sum of $12,000."

A number of interesting legal questions were raised by the reasons, and counsel undertook to argue them; but, when it was pointed out that they were covered by exceptions taken at the trial, that the rule to show cause had reserved all exceptions, and that these would be waived on appeal if considered on this rule (Ashburst v. Atlantic Coast R. Co., 48 A. 199, 66 N. J. Law, 16; Newark Trust Co. v. Curtiss, 89 A. 990, 85 N. J. Law, 491; Faragasso v. Introcaso, 121 A. 773, 98 N. J. Law, 583), argument of these points was abandoned, and the discussion was thereupon limited to weight of evidence and alleged excessive damages. In dealing with these questions on this rule, we must perforce assume for present purposes that the statute was a valid enactment, that plaintiff was entitled to invoke it, and that the cause was correctly tried and the jury correctly charged; in other words, we take the law of the case as laid down by the trial judge. Bowlby v. Phillipsburg, 84 A. 1051, 83 N. J. Law, 377. Consequently the questions to be now decided are: Was the verdict contrary to the weight of evidence, tested by the rules laid down by the trial judge? and, Was the verdict excessive, similarly tested by the instructions applicable thereto? We conclude that it was neither.

As to weight of evidence: The statute provides, and the court in effect charged, that a right of action is raised as against any person (which includes corporations [C. S. p. 4972, § 9]) "who, by unlawfully selling, or by unlawfully assisting in any manner in the procuring of such liquor, shall have caused or contributed to the said intoxication," etc., whereby the party consuming such liquor has suffered injury or death from intoxication.

A full recital of the evidence would serve no useful end. It sufficiently appeared on the evidence to justify the jury in finding that deceased, who was a member of the Polish Home (which, as we have said, was a sort of social club), spent about 24 hours there, playing cards and drinking; that the...