Lester v. Sampson

• Decision Date: 18 November 1915
• Docket Number: No. 1536.,1536.
• Parties: LESTER v. SAMPSON.
• Court: Missouri Court of Appeals

180 S.W. 419

LESTER v. SAMPSON.

No. 1536.

Springfield Court of Appeals, Missouri.

November 18, 1915.^*

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by Rhoda Lester against Frank J. Sampson. From a judgment for plaintiff, defendant appeals. Affirmed.

C. V. Buckley and Byron H. Coon, both of Joplin, for appellant. Kelsey & Cameron, of Joplin, for respondent.

STURGIS, J.

The plaintiff, wife of John Lester, brought this suit in several counts against defendant, a licensed dramshop keeper, to recover the penalty for violating section 7223, R. S. 1909, which provides that any dramshop keeper selling, giving away, or otherwise disposing of, or suffering the same to be done about his premises, any intoxicating liquors to any habitual drunkard after such dramshop keeper shall have been notified by the wife or other named relatives of such person not to sell, give away, or furnish such person any intoxicating liquors, shall forfeit and pay such wife or other relative for every such offense a sum of not less than $50 nor more than $500, to be recovered by a civil action. A jury was waived, and the court found the defendant guilty under the evidence and awarded the wife a judgment for $150 on one count of the petition and found for defendant on the other counts. The counts are similar and differ only so far as necessary to charge separate sales.

The defendant challenges the sufficiency of the evidence to sustain a finding for plaintiff. The defendant denies that either he or his bartender sold or disposed of the intoxicants to the plaintiff's husband, or suffered the same to be done, after her notification to him not to do so. He introduced evidence tending to show that he and his bartender repeatedly refused to sell or to permit others to buy for John Lester any liquors at defendant's saloon. The plaintiff, however, evidently suspecting that her husband was drinking there, was bold enough, on one occasion, to enter the saloon, and caught her husband in the act of drinking a glass of beer with a crowd of his companions lined up at defendant's bar. The defendant sought to explain this and to evade responsibility by showing that he told the party who called for and paid for the drinks on this occasion that he could not sell any to or for John Lester, and refused to do so; that one of the drinking party then slipped his glass of beer to Lester without the knowledge or consent of defendant's bartender. The member of the party so furnishing beer to Lester then got another glass for himself. The evidence tends to show that John Lester managed to obtain intoxicants at defendant's saloon by this or similar methods on several occasions. Without going into the details of the evidence, we hold that if the evidence is sufficient, and we think it is, to warrant a finding that defendant's bartender knew of and permitted, if he did not connive at, this indirect method of furnishing liquor to plaintiff's husband, then the statute is broad enough to cover all such indirect methods. The trial court declared by an instruction given that he could not find for plaintiff unless he found that defendant, either in person or by agent, sold or gave away intoxicating liquors or permitted same to be sold or given to John Lester; and, after reading the evidence, it is not necessary to say that we defer to the superior means and knowledge of the trial judge in being able to see through the roundabout conduit connecting defendant's beer keg with John Lester.

The question most pressed on our attention is that plaintiff failed to show that her husband was in fact an habitual drunkard and belonged to the class which the statute forbids liquor to be furnished to after notice from the wife not to do so. We will not quote all the evidence as to the drinking habits of John Lester, but note that his wife testified that he got drunk every Saturday night; that this had been going on for about ten years; that sometimes he stays drunk two or three days and has been in the habit of becoming drunk as much as once a week for the past six or seven years; that at times he drank so much he was not able to get home; that he did this about every Saturday night and through the week if he was not working; at times he would bring liquor home and get so drunk he could not get away. Another witness said he had seen Lester drunk a number of times; that he gets pretty bad; that he could not state how frequently, but it is at intervals right along. Another testified that he had seen him drinking on an average of once a week for two years. Another had seen him intoxicated several times during the last eight years. Still another said that, during the time he had known him, he had known him to be under the influence of liquor a good many times, and that a good many times he would get under the influence of it and come to defendant's saloon. On the other hand, the evidence shows that John Lester was a day laborer working at the mines near Joplin; that he was a good workman, always able to do good work and hold his job, and seldom, if ever, lost a day from his work because of 'drinking. We have no hesitation in saying that this evidence is sufficient to sustain the finding for plaintiff.

The defendant also assigns error in that the court refused to give the following instruction:

"The court instructs the jury that, on the question of said John Lester being an habitual drunkard, it is not sufficient for the proof to show that he occasionally got drunk, nor that he occasionally drank liquor, nor that he drank liquor every day, because drinking in the manner aforesaid does not constitute an habitual drunkard. You must find from the evidence that John Lester, the husband of plaintiff, at the times mentioned in the evidence, was a person given to inebriety, or the excessive use of intoxicating drinks, who has lost the power or will, by frequent indulgence, to control his appetite for it, but did thus frequently and excessively indulge in the use of intoxicating liquors.

"You are instructed that it makes no difference that he frequented the defendant's saloon, or any other saloon, or that he was there more often than at home, for the statute is not aimed at, nor does it prohibit, the frequenting of saloons, but he must have been, in order to find for the plaintiff, an habitual drunkard as above defined, and unless you find from the evidence he was such habitual drunkard, your verdict will be for the defendant."

This instruction, we think, is wrong and was properly refused, because it makes it necessary, to constitute one an habitual drunkard, that he be "given to inebriety or excessive use of intoxicating liquors, who has lost the power or Will by frequent indulgence to control his appetite for it." We do not assent to the proposition that to be an habitual drunkard one must have lost the will power to control his appetite for intoxicants—the power to break the habit. It is true that in Jackson County v. Schmid, 141 Mo. App. 229, 235, 124 S. W. 1074, the court said that an instruction using the words above quoted sufficiently defines an habitual drunkard; and so it does—that is, one who is given to inebriety or the use of intoxicating liquors to the extent that he has lost the power or will to control his appetite is an habitual drunkard—but may he not be an habitual drunkard without losing his power to abstain therefrom? A lay witness in this case said that a man is drunk when from the use of intoxicants he becomes "so he don't know nothin' "; and to this also we agree, but we would be unwilling to hold that one is not drunk until he reaches the above-described condition.

By its terminology, the words "habitual drunkard" simply mean one whose getting drunk is a habit; that is, that his becoming drunk recurs with such frequency and at such more or less regular intervals that the same is a habit. In Jackson County v. Schmid, supra, the court quoted with approval the definition of this term given in Page v. Page, 43 Wash. 293, 86 Pac. 582, 6 L. R. A. (N. S.) 914, 117 Am. St. Rep. 1054:

"To be an `habitual drunkard' a person does not have to be drunk all the time, nor necessarily incapacitated from pursuing during the working hours of the day ordinarily unskilled * * * labor. One is an habitual drunkard, in the meaning of the divorce laws, who has the fixed habit of frequently getting drunk. It is not necessary that he be constantly or universally drunk, or that he has more drunk than sober hours; it is enough that he has the habit so firmly fixed upon him that he becomes drunk" with...