Keyser v. Damron

• Decision Date: 09 June 1914
• Citation: 159 Ky. 444,167 S.W. 381
• Parties: KEYSER v. DAMRON. [d1]
• Court: Kentucky Court of Appeals

167 S.W. 381

159 Ky. 444

KEYSER v. DAMRON. ^[d1]

Court of Appeals of Kentucky.

June 9, 1914

Appeal from Circuit Court, Boyd County.

Action by Lizzie Keyser against Wayne Damron. Judgment for defendant, and plaintiff appeals. Affirmed.

John S Fullerton and John W. Woods, both of Ashland, for appellant.

L. T Everett and John F. Coldiron, both of Catlettsburg, for appellee.

NUNN J.

This is an action by Mrs. Lizzie Keyser to recover $2,000 damages of Wayne Damron, a licensed saloon keeper, for selling liquor to her inebriate husband, notwithstanding a notice theretofore served upon him not to do so. The action is brought under section 1307, Kentucky Statutes, which reads as follows:

"Any person who shall sell, lend, give, procure for, or furnish spirituous, vinous or malt liquors, or any mixture of either, knowingly, to any person who is an inebriate or in the habit of becoming intoxicated or drunk by the use of any such liquors, or who shall suffer or permit any such person to drink any such liquors in his bar-room, saloon, or upon the premises under his control, or in his possession, shall be fined for each offense fifty dollars, and the person so offending, together with the sureties on his bond, if he has executed a bond to enable him to sell liquor, shall be liable to a civil action for damages by the wife, or the father, or the mother, or the child of such inebriate, or person so in the habit of becoming intoxicated or drunk, in which punitive damages may be assessed; but the person so selling shall not be liable in a civil action to the wife, father, or other relation, unless written notice forbidding such sale has been given the person so selling prior to the offense complained of, and such action shall be brought within one year from the time the cause of action has accrued, and not after."

The sale was made during the year 1909, and within 12 months just preceding the institution of the action. The main issue in the case is whether notice was, in fact, served on Damron, and, this question being submitted to the jury, they returned a verdict against Mrs. Keyser, and she appeals.

At that time Mrs. Keyser testified she was 33 years of age, and had been married to Charles Keyser ever since she was 15 years old. During the eighteen years of their married life eight children had been born to them. For 15 years her husband had been a confirmed drunkard, a source of constant sorrow and anxiety to her. He had wasted his estate, and lost his power to earn money. Her loyalty to her husband under these circumstances, her solicitude for the children, and the goodness of her character at once arouses the sympathy of any one who is called to give the case consideration, and we are constrained to believe that the jury would have given her some relief in damages had they felt that the facts proven with reference to the notice came within the statutory requirements. The jury evidently believed that there was not satisfactory or sufficient proof that Wayne Damron, the proprietor of the saloon, had ever been notified not to sell or give liquor to her husband, for they returned a verdict in his favor. That the notice must be given to the proprietor is conceded. Eilke v. McGrath, 100 Ky. 537, 38 S.W. 877, 18 Ky. Law Rep. 928.

Both appellant and appellee criticize the instructions given by the court, and we will notice these objections later, but as to whether the judgment entered on this verdict shall be sustained it is a simple question of fact.

It seems in 1907 there were 15 saloons in Catlettsburg. Mrs. Keyser secured the services of an attorney, and prepared notices in sufficient number for delivery to each one of these saloon keepers, and one day in November of that year she went to each one of these saloons, and delivered, or attempted to deliver, a paper to each proprietor notifying him that her husband was an inebriate, and not to sell, give, or furnish him any spirituous, vinous, or malt liquors. She says she never saw Damron but once, and that was 4 or 5 years before. That when she reached Damron's place of business her attorney pointed him out to her behind the counter, and she delivered the notice to him. She never saw him again, but when the case came on for trial in November, 1911, she pointed him out in the courtroom as being the same person to whom she delivered the notice. Her attorney testifies to the preparation of the notices, and his trip with her to the various saloons, and, while he remembers going to Damron's place of business, he does not recollect whether Damron was there, or whether she delivered the notice to Damron, or some employé, or other person in the saloon.

Mrs. Keyser's 15 year old son, Reece Keyser, testifies that at a certain time within the year before the suit was filed he was in Damron's saloon with his father, and that Damron sold his father a glass of beer and a pint of whisky. Damron, the appellee, testifies that he has no knowledge of having sold Keyser any liquor, and that, in fact, he does not know Keyser, at least by name, and that neither Mrs. Keyser, her attorney, or anybody ever served any notice upon him with reference to John Keyser, nor did he ever hear of any such thing.

Less Caudill, who was bartender for Damron, and had been for 5 or 7 years, knew nothing of the notice, nor of Mrs. Keyser's visit to the saloon to serve it; in fact, never heard of the notice.

Gerard Luther swears that Mrs. Keyser did come there with the attorney, and delivered a notice to some one in the saloon, but that it was not Wayne Damron, the proprietor; for he swears positively that Damron was not there. He did not know to whom the notice was given, and would not swear that it was even handed to one of Damron's employés.

On the question of the notice, this was the only testimony. As will be seen, it was quite conflicting, and it was the sole province of the jury to pass upon it, and determine the question. As above stated, they returned a verdict for Damron, believing that the evidence failed to show that Damron had been notified not to let him have liquor. Because the evidence was conflicting, and sufficient to support their verdict in either event, we cannot disturb it.

Ordinarily this...