Buck v. Maddock

• Decision Date: 11 May 1897
• Parties: BUCK et al. v. MADDOCK et al.
• Court: Illinois Supreme Court

167 Ill. 219

47 N.E. 208

BUCK et al.

v.MADDOCK et al.

Supreme Court of Illinois.

May 11, 1897.

Error to appellate court, Third district.

Action by Eddie Maddock and others against Henry W. Buck and others. Judgment for plaintiffs was affirmed by the appellate court (67 Ill. App. 466), and defendants bring error. Affirmed.

A. E. De Mange, for plaintiffs in error.

J. J. Morrissey and Livington & Bach, for defendants in error.

WILKIN, J.

The defendants in error declared against plaintiffs in error in case, alleging that plaintiff in error Buck was the keeper of a dramshop in a house rented him for that purpose by appellant Walsh; that he furnished intoxicating liquors to Edward Maddock, father of appellees, causing him to become intoxicated, in consequence of which the said Maddock went upon a railroad track, and, failing to exercise proper care for his own safety, was killed by a passing train. A plea of not guilty was filed, and, upon trial by jury, the issue was found for appellees, and their damages assessed at $1,550. The appellate court having affirmed that judgment, this writ of error is prosecuted.

After settling the facts adversely to plaintiffs in error, the appellate court disposed of the questions of law as follows:

‘The brief of appellants presents various objections to the action of the court in admitting evidence, but we find nothing substantial in that respect. For example, it is urged that the court erred in permitting proof that the deceased was industrious when sober, because there was no allegation in the declaration that he was an habitual drunkard, and also in permitting proof of what deceased had done in the way of supporting his wife. Such proof of tended to show the ability and disposition of the man when in a normal condition to discharge his duties to his family. It is urged the court erred in refusing to allow appellants to ask Robbins on cross-examination whether he had not been given money by plaintiffs' counsel to get his clothes. The question was general, ‘Didn't you get some money paid to get your clothes here?’ without any limitation as to where or from whom. He had previously answered several questions on that line, and the court had required one of the questions to be framed so as to state from whom the supposed contribution had come. There was no error in this action of the court, nor in the like ruling on another repeated question as to whether he had not been furnished free drinks at the saloon of a relative of the appellees, he having once answered such a question in the negative. It is within the province of the court to sustain objections to questions which are mere repetitions of those which have been asked and answered.

‘It is said the trial court erred in refusing proof of admissions made by the mother of the appellees, who was acting as their ‘next friend’ in this suit. She is not a party to the suit in such a sense that her admissions or declarations out of court should be received. She was a witness, and, if it was desired to prove that she made the supposed statements by way of impeachment, the proper foundation should have been laid by asking her whether she had so stated, fixing the time and place and persons present. This was not done. The point is not well taken.

‘Much criticism of the instructions given for plaintiffs is found in the brief, but the objections are mainly based upon a strained and forced construction of some expressions selected, without regard to the context. As to the first, it is said that it is dictatorial and mandatory and coercive,-quite a misapprehension, as we think. Another complaint is that it permits a recovery if the said Maddock died in consequence of his intoxication, when the declaration avers that he was killed,-an entirely different matter, as counsel suggests. We are unable to appreciate the force of the objection. As to the second, the point urged is that it authorizes the jury to assess any damages which they may believe, from the evidence, the plaintiffs had sustained, without a limitation to their loss of support; but the very sentence from which these words were taken is predicated upon an injury to the means of support. Equally unsubstantial are the objections to the third, fourth, and fifth. As to the sixth, it is urged that it assumes that defendant Buck did sell liquor to Maddock, because the word ‘the’ precedes the words ‘intoxicating liquor,’ etc. A further objection is that the instruction assumes that, in the death of their father, the appellees had sustained damages to an amount in the loss of means of support. Both objections are too refined for the practical administration of justice. A third objection urged to this instruction is that it advises the jury they might allow exemplary damages if they found that defendant Buck, in person, gave Maddock intoxicating liquors when he was already under the influence of such liquors, thereby causing the drunkenness complained of. As applied to the evidence that Buck gave Maddock ten or fifteen drinks of beer and whisky within a period of an hour and a half, during a part of which time ‘he was under the influence of liquor,’ the instruction was not improper. Betting v. Bobbett (Ill. Sup.) 30 N. E. 1048. Counsel argue that the phrase ‘under the influence of liquor’ is too vague, and is not equivalent to ‘drunk’ or ‘intoxicat...