Hartwig v. Loyal Order of Moose, Brainerd Lodge No. 1246

• Decision Date: 08 August 1958
• Docket Number: 37298,37299,Nos. 37188--37193,No. 255,No. 287,287,255,s. 37188--37193
• Citation: 91 N.W.2d 794,253 Minn. 347,75 A.L.R.2d 459
• Parties: , 75 A.L.R.2d 459 Violet HARTWIG, as guardian ad litem of David Lee Hartwig, a minor, and Violet Hartwig, Respondents, v. The LOYAL ORDER OF MOOSE, BRAINERD LODGE NO. 1246, Brainerd, Minnesota, Appellant, Brainerd AerieFraternal Order of Eagles, Appellant, Carl Sidney Hanson PostAmerican Legion, Appellant, Western Surety Company, Appellant.
• Court: Minnesota Supreme Court

Page 794

91 N.W.2d 794

253 Minn. 347, 75 A.L.R.2d 459

Violet HARTWIG, as guardian ad litem of David Lee Hartwig, a minor, and Violet Hartwig, Respondents, v. The LOYAL ORDER OF MOOSE, BRAINERD LODGE NO. 1246, Brainerd Minnesota, Appellant Brainerd Aerie No. 287 Fraternal Order of Eagles Appellant Carl Sidney Hanson Post No. 255 American Legion, Appellant, Western Surety Company, Appellant.

Nos. 37188--37193, 37298, 37299.

Supreme Court of Minnesota.

Aug. 8, 1958.

Syllabus by the Court

1. Where an appeal is taken to review a jury's verdict, the appellate court is obliged to give the verdict the benefit of every reasonable inference which may properly be drawn to its support from the evidence as a whole.

2. Before plaintiffs are entitled to recover in these cases they must show by competent proof that defendants or any of them unlawfully furnished intoxicating liquor which caused or contributed to the intoxication of the person involved and that the same was a proximate cause of the injuries complained of.

3. These action having been instituted under the Civil Damage Act, plaintiffs had the burden of establishing that the damages for which compensation was sought had been the proximate result of an illegal furnishing or sale of intoxicants. In the trial of such action both parties may present such evidence as they have at their disposal, including that submitted in a prior action under the Wrongful Death Act so that all issues may properly be determined.

4. Any statement in previous cases involving M.S.A. § 340.95 to the effect that a suit thereunder is a means to impose a penalty on a dealer of intoxicating liquor is to be construed to indicate that the defenses of contributory negligence or lack of guilty knowledge are not available but not that this section is other than compensatory in nature.

5. Plaintiffs are entitled to but one satisfaction of the loss which they have suffered in their means of support. This rule, however, does not bar plaintiffs from establishing that the judgment recovered in a prior wrongful death from did not constitute full compensation for the damages recoverable under § 340.95, or from establishing the right to recover to the extent of the penalty provided for under § 340.12.

6. The defendants had the right to show the prior recovery so that it may be determined to what extent plaintiffs have been compensated for their damages. Although our Civil Damage Act is penal in nature, nevertheless, because the remedy provided thereby is compensation for damages, it is therefore in that aspect a remedial statute.

7. A defective pleading, clearly amendable in the discretion of the trial court, cannot be taken advantage of in this court by a party who had an opportunity to make his objection to it in the court below but omitted so to do. When the sufficiency of a pleading is questioned for the first time on appeal, it will be sustained if by any reasonable inference or intendment a cause of action or defense can be spelled out of the matters alleged.

8. Where, as here, plaintiffs' claims are for unliquidated damages, matter in mitigation of damages need not be specially pleaded but may be shown under a general denial.

9. The broad denials contained in the answers of the defendants raise the issue of the amount of damages suffered by the plaintiffs and the matter of showing plaintiffs' prior recovery goes to the measure of damages.

10. A party cannot impeach a witness whom he has called by proof of contradictory statements out of court. When party is surprised by the adverse testimony of his own witness, he may be permitted by the court, in the exercise of its discretion, to impeach the witness by proof of contradictory statements, providing a proper foundation has been laid.

11. Circumstantial evidence may help to establish the essential fact, but there must be evidence from which it may reasonably be inferred that the essential fact did exist.

12. Being under the influence of intoxicating liquor at the time of the occurrence of the accident would not, standing alone, answer the requirements of § 340.95, which must be strictly construed.

13. Circumstances which merely create suspicion, but do not justify affirmative and reasonable deduction, are not enough to sustain decision against the negative. The evidence must be something more than consistent with the plaintiffs' theory of how the accident occurred. Reasonable minds functioning judicially must be able to conclude from the circumstances that the theory adopted by the verdicts outweighs and preponderates over any other theory.

Nolan & Alderman, Brainerd, for Loyal Order of Moose Brainerd Lodge No. 1246.

Fitzpatrick & Larson, S. G. Fitzpatrick, Brainerd, for Western Surety Co.

F. C. Schroeder, Detroit Lakes, for Brainerd Aerie No. 287 Fraternal Order of Eagles.

John J. Sexton, Thomas J. Burke, St. Paul, for Carl Sidney Hanson Post No. 255 American Legion.

Ryan, Ryan & Ebert, Clem A. Ryan, Brainerd, for respondents.

NELSON, Justice.

The plaintiff, Violet Hartwig, instituted two actions under the Civil Damage Act, M.S.A. § 340.95, one in her own behalf and the other as guardian ad litem of David Lee Hartwig, a minor, naming in each case as defendants The Loyal Order of Moose, Brainerd Lodge No. 1246, a corporation; Brainerd Aerie No. 287 Fraternal Order of Eagles, a corporation; Carl Sidney Hanson Post 255 American Legion, a corporation; and Western Surety Company, a corporation.

These cases were consolidated for trial with other cases which are not involved in the appeal. The cases were tried before the district court with a jury and submitted on special verdicts. The jury found that one Emil Hellen was intoxicated at the time of the collision; that the intoxication of Emil Hellen caused the death of Lee Hartwig, husband of Violet Hartwig and father of David Lee Hartwig, a minor; and that each of the defendants named caused or contributed to Emil Hellen's intoxication; that Violet Hartwig had suffered damages in means of support, pursuant to the remedies afforded under § 340.95, in the amount of $18,000; and that David Lee Hartwig had suffered damages in means of support, also pursuant to § 340.95, in the amount of $10,000. One of the special questions submitted to the jury was the following: 'What was the fair and reasonable amount of the medical and hospital bills necessarily incurred for care and treatment of Lee Hartwig on account of said accident?' The jury answered the question by inserting the figure of $5,170.10. The court thereafter ordered judgment for $18,000 plus $5,170.10 for Violet Hartwig and judgment for $10,000 for David Lee Hartwig. Motions for judgments notwithstanding the verdicts or in the alternative for a new trial were made by defendants excepting the Legion, whose motion was for judgment notwithstanding the verdict, and all motions were denied.

The verdicts appear to be based upon the following facts: On April 25, 1955, an automobile driven by one Earl Mondor was driven off the highway and into a pole. That accident occurred about 2 1/2 miles south of Brainerd on Highway No. 371. Subsequently a wrecker operated by Lee Hartwig was sent by the highway patrol to pull Mondor's car from the scene. While Lee Hartwig was engaged in connecting to the Mondor car, one Emil Hellen, driving a pickup truck, collided with the wrecker inflicting injuries on Lee Hartwig which caused his death 2 months later.

The collision between the pickup truck and the wrecker occurred in the early morning of April 25, 1955. Hellen had been in Brainerd on April 24, a Sunday. He was at that time 64 years old. He had attended church in the morning returning to his son's home where he visited until about 8 p.m. that evening. Sunday night he first went to the Eagles' clubrooms.

Called as a witness in behalf of the plaintiff, Emil Hellen testified as follows:

'Q. Were you a member of the Eagles? A. Yes, sir.

'Q. And did you have anything to drink that evening at the Eagles' Club Room? A. I had two drinks up there, I believe.

'Q. What kind of drinks? A. They were whiskey and sour.

'Q. Was that all the drinks you had at the Eagles'? A. That's all I had up there.'

After testifying as to what he did during the period he spent at the Eagles' clubrooms, he stated that he left there somewhere between 9 and 9:30 p.m. to go to the Moose clubrooms less than one-half block away. He testified further as follows:

'Q. And were you a member of the Moose Lodge also? A. Yes, sir.

'Q. And did you have any intoxicating liquor at the Moose Lodge? A. I had about three drinks up there.

'Q. You say about three drinks? A. Well, three.

'Q. And what sort of drinks were those? A. They were the same--whiskey and sour.

'Q. And who bought those drinks? A. Who bought those drinks?

'Q. Did you buy those drinks? A. Yes, sir.

'Q. And how long were you at the Moose Lodge? A. Oh, I would say until about twelve or a little after twelve.'

He testified that about midnight he went from the Moose Lodge rooms to the American Legion clubrooms together with three others referred to in the testimony. His testimony continued as follows:

'Q. Were you a member of the Legion? A. No, sir.

'Q. Did you have anything to drink at the Legion? A. I did.

'Q. And how long were you there? A. I would say about an hour.

'Q. And do you remember how many drinks approximately you had at the Legion? A. I had two drinks at the Legion.

'Q. And what sort of drinks were these? A. The same, whiskey and sour.

'Q. And what time was it when you left the Legion Club Rooms? A. I would say about one o'clock, closing up.'

On cross-examination by counsel for the Moose he was asked the following questions and gave the following answers:

'Q. And you had nothing to drink at your son's home? A. No, I didn't.

'Q. And your first drink that evening then was at the Eagles? A. At the Eagles', yes, ma'am.'

On cross-examination by counsel for the American Legion he was asked the following...