Pegram v. Stortz

• Decision Date: 28 February 1888
• Citation: 6 S.E. 485,31 W.Va. 220
• Parties: PEGRAM v. STORTZ.
• Court: West Virginia Supreme Court

6 S.E. 485

31 W.Va. 220

PEGRAM v. STORTZ.

Supreme Court of Appeals of West Virginia.

February 28, 1888

Submitted September 15, 1887.--

Syllabus by the Court.

By chapter 107. § 16. Acts 1877, p. 144, it is provided "An action may be maintained [under specified circumstances] by the wife against the person selling or furnishing such spirituous liquors, as well for all such damages as the plaintiff has sustained by reason of the selling or giving such liquors, as for exemplary damages." By exemplary damages is meant, not additional damages given as a punishment of the defendant for selling intoxicating liquors to her husband illegally, but damages which shall not only compensate her for injury to her means of support, but also, in a proper case, damages which shall compensate her for her mental anguish.

Such exemplary damages cannot be given to recompense her for her anxiety of mind, mortification, social degradation, and loss of her husband's society, by reason of his drunkenness and misconduct; but they can only be given where the defendant has not simply committed against her the tort of selling illegally intoxicating liquors to her husband whereby she was injured in her means of support, but where the defendant made such sale under circumstances which showed actual malice, or wanton, deliberate, and willful disregard of her rights and known wishes.

In such a case, no damages can be given the plaintiff because of injury to her means of support by the death of her husband caused by his intoxication, the consequence of liquors illegally furnished or sold to him by the defendant.

It is sufficient, in a declaration in such a case, to allege generally that the plaintiff was injured in her means of support in consequence of such intoxication; but under such a declaration the plaintiff could prove only the extent of the injury to her means of support which she had sustained as the necessary consequence of her husband's intoxication, as that resulting from his inability to labor while so intoxicated.

But when the plaintiff wishes to prove that she has suffered damages in her means of support, the natural, but not the necessary, result of her husband's intoxication,--as when he, when drunk, expended his money with reckless prodigality whereby she was injured in her means of support,--she must allege this in her declaration.

Under chapter 107, § 16, Acts 1877, the written notice required must be served on the defendant while he is engaged in the sale of intoxicating liquors for himself or for another as a business, or the plaintiff cannot recover in a suit under this statute.

Under this act it is also essential, to sustain an action, that when such person was so served with notice, the husband named in the notice was in the habit of drinking to intoxication.

Where the case is one in which a jury might properly and legally award to the plaintiff exemplary damages, the verdict will not be set aside on the grounds that the damages are excessive, unless they are so enormous as to furnish evidence of partiality, passion, corruption, or prejudice on the part of the jury.

But where it is clear, upon the facts proven by the evidence introduced before the jury, that it is not a case, under the rule above laid down, where the jury could legally award such exem plary damages, and it is obvious from their verdict that the damages must have included exemplary damages, it is the duty of the court, on the motion of the plaintiff, to set aside such verdict, and award a new trial.

Where the clerk who certifies a record to which a writ of error and supersedeas have been awarded, copies into it as a part of the record a bill of exceptions marked "No. 2," which is apparently signed and sealed by the circuit court judge presiding at the trial, but no reference whatever is made to this bill of exceptions by any entry on the record book, though there was on the record book an entry that, on the trial of the case, one of the parties took a bill of exceptions marked "Bill of exceptions No. 1," which was signed, sealed, and saved to him, and made a part of the record, the appellate court will not regard this bill of exceptions, marked "No. 2," so inserted in the copy of the record by the clerk, as constituting any part of the record of the case.

Error to circuit court, Mason county.

Where the clerk who certifies a record, to which a writ of error and supersedeas have been awarded, copies into it a bill of exceptions marked "No. 2," which is apparently signed and sealed by the circuit court judge presiding at the trial, but no reference whatever is made to it by any entry on the record book, though there was in it an entry that, on the trial, one of the parties took a bill of exceptions marked "Bill of Exceptions No. 1," which was signed, and made a part of the record, the appellate court will disregard the bill of exceptions marked "No. 2."

This was an action on the case, brought on February 27, 1885, in the circuit court of Mason county, by Nancy A. Pegram, the widow of Thomas Pegram, against John G. Stortz, under chapter 107, Acts 1877, p, 139, (see Warth's Amended Code, c. 32, § 16, p. 216,) for injury to the plaintiff's means of support, as the wife of Thomas Pegram, caused by the sale or furnishing to him by the defendant, a saloon keeper, of intoxicating liquors, whereby he became intoxicated, and by reason of such intoxication did injure her in her means of support by depriving her of food, clothing, and other necessaries and comforts of life; said sales or furnishing of intoxicating liquors to her husband by the defendant having been made in disregard of a written notice given by the plaintiff to the defendant not to sell or furnish her said husband any intoxicating liquors, he being, when said notice was given, an habitual drunkard. The summons was served on the defendant on the day it was issued, the 27th of February, 1885. The declaration was filed at April rules, 1885. The defendant demurred to the declaration, and at the first term of the court, on May 13, 1885, the court sustained the demurrer to the declaration, but gave the plaintiff leave to amend her declaration at the bar, which the plaintiff did forthwith; and the cause was continued. At the next term of the court, on September 23, 1885, the defendant demurred to the amended declaration, and each count thereof, in which the plaintiff joined; and the defendant also pleaded not guilty, and issue was joined on this plea. At the next term of the court, on February 9, 1886, the court overruled the demurrer to the amended declaration, and to each count thereof; and the defendant pleaded the statute of limitations of one year, to which the plaintiff replied generally. The second count of the amended declaration stated that the plaintiff married Thomas Pegram, and continued his wife till March, 1884, when he lost his life by being drowned; that, when sober, he was kind, loving, and prosperous, and provided her a comfortable support, and that, prior to the ___ day of ___, 1878, he had become addicted to drinking to excess, and on said day and thereafter was in the habit of drinking to intoxication; that on that day the defendant was engaged in the sale of intoxicating liquors in the town of Point Pleasant, in said county, and continued in this business till after March, 1884; that in 1878, while her husband, Thomas Pegram, was in the habit of drinking to intoxication, she served on the defendant a written notice not to sell or furnish to her said husband any intoxicating liquors, but in disregard of this notice, in March, 1884, and at other times prior thereto, the defendant sold and furnished to her said husband, an habitual drunkard, intoxicating liquors, by reason whereof he did on that day, and on sundry times prior thereto, become intoxicated, and by reason of such intoxication did injure the plaintiff in her means of support, by depriving her of food, clothing, and other necessaries and comforts of life, on the day last named, and at divers times prior thereto; and on the day last named, by reason of said intoxication, her said husband lost his life by drowning in the Kanawha river, by reason whereof she further avers injury to her means of support. The first count was defective, in no manner alleging that her husband was an habitual drunkard when she gave the defendant such written notice, or that the defendant was then engaged in selling intoxicating liquors as a business when such notice was given him, or that, she was in any way injured in her means of support by the intoxication of her husband, except by his being drowned in March, 1884, by reason of his intoxication caused by intoxicating liquors sold or furnished him by the defendant, contrary to such written notice given to him by her long before that time. The damages claimed were $5,000. The case, on these issues of not guilty and the statute of limitations of one year, was tried by a jury on February 13, 1886. The jury found for the plaintiff, and assessed her damages at $1,000. The defendant moved the court to grant him a new trial because this verdict was contrary to the law and the evidence, which motion the court overruled, and on February 19, 1886, rendered a judgment in favor of the plaintiff against the defendant for $1,000, the said damages assessed by the jury, and for her costs. The defendant excepted to this action of the court in overruling his motion for a new trial, and rendering this judgment; and took a bill of exceptions to this action of the court, in which all the evidence submitted to the jury is stated at length.

The plaintiff by her evidence proved that she married Thomas Pegram in the fall of 1870. He was a carpenter by trade. When sober, he was kind, sociable, a good workman,...