Bower v. Fredericks

• Decision Date: 17 April 1911
• Docket Number: 3-1911
• Citation: 46 Pa.Super. 540
• Parties: Bower v. Fredericks, Appellant
• Court: Pennsylvania Superior Court

46 Pa.Super. 540

Bower v. Fredericks, Appellant

No. 3-1911

Superior Court of Pennsylvania

April 17, 1911

Argued March 1, 1911 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Lycoming Co., Sept. Term 1909, No. 250, on verdict for plaintiffs in case of Rosa L Bower et al. v. Joseph G. Fredericks.

Trespass to recover damages for death of plaintiff's husband. Before Hart, P. J.

At the trial there was evidence which tended to show that the deceased was a man of known intemperate habits. On July 9, 1909, he was served with liquor by the defendant and shortly after he was seen seated in his wagon in an intoxicated condition. Subsequently other witnesses saw his dead body being dragged behind his wagon.

The plaintiff presented the following points:

1. If the jury find from all the evidence that Joseph G. Fredericks, the defendant, did on July 9, 1909, furnish intoxicating drinks to Henry J. Bower, husband and father of the plaintiff, and that the said Henry J. Bower was a man of known intemperate habits and that the defendant, Joseph G. Fredericks, so knowing, intentionally sold him intoxicating drinks on the day in question and that this sale was the proximate cause of his death, then the verdict of the jury should be for the plaintiffs. Answer: This point is affirmed.

3. If the jury find from all the evidence that the plaintiffs are entitled to recover, then under the provisions of the act of assembly of May 8, 1854, which provides that any person furnishing any intoxicating drinks to any other person, in violation of any existing law or the provisions of this act shall be held civilly responsible for any injury to person or property, in consequence of such furnishing, and that anyone aggrieved may recover full damages; the persons entitled to recovery in this case are Rosa L. Bower, widow, and Stella M. Bower and Adam N. Bower, minor children of Henry J. Bower, deceased, and the damages to which they are entitled to recover is the pecuniary loss they have suffered without any solatium for mental suffering or grief and the amount thereof is to be determined by what the deceased would probably have earned by his labor if the injury which caused the death of Henry J. Bower had not befallen him and which would have gone to the support of his wife and children; and in fixing this amount consideration must be given to the age of Henry J. Bower, his health, his ability and disposition to labor, his habits of living and his expenditures. Answer: This point is affirmed.

4. If the jury find the plaintiffs are entitled to recovery, the jury in determining the amount of the verdict as based upon the expectancy of the life of Henry J. Bower, deceased, is not to take the Carlisle tables introduced in evidence by the plaintiffs as a fact in the case but only as an aid in arriving at what would be the continuance of life and that the duration of life depended largely upon the continuance of health, the habits and conduct of Henry J. Bower, deceased. Answer: This point is affirmed.

Verdict and judgment for plaintiffs for $ 1,000. Defendant appealed.

Errors assigned were above instructions, quoting them.

Affirmed.

Mortimer C. Rhone, for appellant. -- It was not a violation of the act of 1854 to sell liquor to a person " visibly affected by intoxicating drink." We contend that the remedy provided in the act of 1854 must be restricted to the violation of the law as it then stood, and if that law has been repealed, then the remedy, if the plaintiff has any, must be the common law remedy mentioned in the case of Littell v. Young, 5 Pa.Super. 205; Jonesboro v. R. R. Co., 110 U.S. 192 (4 S.Ct. 67); Harrington v. Fish, 10 Mich. 415; McKean v. Archer, 52 F. 791.

Herbert T. Ames, with him William R. Peoples and Thos. H. Hammond, for appellees. -- The Act of May 8, 1854, P. L. 663, 2 Purdon's Digest, 2328, Pl. 58, is not a part of the license system of Pennsylvania and was not repealed by the act of 1887: Crouse v. Com., 87 Pa. 168; Fink v. Garman, 40 Pa. 95; Erie v. Bootz, 72 Pa. 196; Com. v. Vetterlein, 21 Pa.Super. 587; Uhler v. Moses, 200 Pa. 498.

It is " unlawful violence or negligence" for the defendant, an innkeeper, or anyone else, to sell liquor to a man of known intemperate habits: Fink v. Garman, 40 Pa. 95.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

ORLADY, J.

The plaintiffs recovered a verdict of $ 1,000 as damages against the defendant for his willful and negligent sale of intoxicating liquor to Henry J. Bower, the husband and father of the plaintiffs, he being a man of known intemperate habits, and said sale being the proximate cause of intoxication to such a degree as to cause his death.

The action is founded on the Act of May 8, 1854, P. L. 663, the title of which is " To protect certain domestic and private rights and prevent abuses in the sale and use of intoxicating drinks." The first section declares that sales to certain designated persons shall be a misdemeanor, and fixes the penalty for violating its provisions.

The third section is the one specially involved in this case, and it is as follows: " That any person furnishing intoxicating drinks to any other person in violation of any existing law, or of the provision of this act, shall be held civilly responsible for any injury to person or property in consequence of such furnishing, and anyone aggrieved may recover full damages against such person so furnishing by action on the case, instituted in any court having jurisdiction of such form of action in this Commonwealth."

The remedy given by this section is a civil and not a penal one, and the penal provisions of the Act of May 13, 1887, P. L. 108, are not directly or inferentially in conflict with the earlier statute, nor do they in any manner affect or repeal the civil liability provided for by the third section of the act of 1854.

The widow's right of action in this case is unquestionable under all the authorities, if the unlawful negligence of the defendant was the cause of her loss and, as stated in Fink v Garman, 40 Pa. 95: " What but unlawful negligence was it...