Pennington v. Gillaspie

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
PartiesPENNINGTON. v. GILLASPIE.
Decision Date25 January 1910

66 W.Va. 643
66 S.E. 1009

PENNINGTON.
v.
GILLASPIE.

Supreme Court of Appeals of West Virginia.

Jan. 25, 1910.


(Syllabus by the Court.)

1. Appeal and Error (§ 1042*)—Harmless Error — Refusal to Strike Irrelevant Allegations.

Though under the civil damage act, section 26, chapter 32, Code 1906, as construed by this court, no damages can be given a widow against a licensed retailer of spirituous liquors, because of injury to her means of support by the death of her husband, caused by intoxicants sold her husband by him, the refusal of the court on defendant's motion to strike out of her declaration certain references to the death of her husband, will not on writ of error to this court be treated as error when it appears, as in this case, that defendant was not prejudiced thereby, and that, in ruling on said motion the court announced that the questions presented thereby could and would be acted upon by the court on the trial of the case, and it further appears that on the trial the rights of the defendant were not prejudiced by the judgment of the court on his motion.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. § 1042.*]

2. Appeal and Error (§ 1040*)—Harmless Error—Overruling Demurrer.

Where upon demurrer to a declaration, and to each count thereof, the demurrer is overruled, and it appears that one or more of the counts are bad, and that the demurrer should have been sustained thereto; yet when it clearly appears that no evidence was admitted, or relief given on the defective count, and that the rights of defendant were not prejudiced by the erroneous ruling of the court the judgment will not be reversed solely on this ground.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]

3. Trial (§ 417*)—Motion to Exclude Evidence — Waiver — Subsequent Introduction of Evidence.

A defendant by introducing his own evidence after his motion to exclude the plaintiff's evidence has been overruled thereby waives his motion to exclude.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 980; Dec. Dig. § 417.*1

4. Intoxicating Liquors (§ 312*) — Civil Damages—Limitations.

In such an action by a widow against a licensed retail liquor dealer for injury to her means of support, due to illegal sales of intoxicants to her husband resulting in his death, she is limited in her recovery to damages accruing to her within one year prior to the date of her suit and up to the date of the death of her husband, and an instruction to the jury on this subject should so limit them in their verdict.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 453-458; Dec. Dig. § 312. *]

5. Intoxicating Liquors (§ 313*) — Civil Damage Action — Exemplary Damages — Illegal Sale.

In such an action by a widow against such retail liquor dealer, proof of the illegality of the sales of intoxicants by him to her husband supplies all the elements necessary in other actions of tort to show fraud, malice, oppression or wanton, willful, or reckless conduct, or criminal indifference to civil obligation on the part of the defendant, justifying the jury in awarding exemplary damages against him, as provided by statute.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 456, 457; Dec. Dig. §

313. *]

6. Damages (§ 215*)—Civil Damage Action —Instructions.

In such an action if the plaintiff be entitled to actual damages, the jury may be told in an instruction that they may also award exemplary damages; but it is error to tell them that they should award exemplary damages.

[Ed. Note.—For other cases, see Damages, Dec. Dig. § 215.*]

7. Appeal and Error (§ 1097*)—Subsequent Appeal—Right to Correct Former Ruling.

It is a general rule, with few, if any exceptions, that a matter decided on appeal becomes, in effect, res judicata in that case; or, as it is frequently expressed, it becomes the law of that case in all subsequent proceedings; but when on a second appeal or writ of error it appears that the position of the parties has not been changed, or their rights injuriously affected by an erroneous ruling of the appellate court on the first hearing, and that no injustice or hardship would result from overruling the former decision, and it becomes necessary to reverse the case for other errors, the appellate court may correct its ruling on the former appeal or writ of error, and direct the lower court on a, new trial to disregard the first ruling.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4308; Dec. Dig. § 1097.*]

8. Trial (§ 252*)—Civil Damage Actions-Instructions — Applicability to Evidence.

In an action by a widow under said civil damage act, to recover from the defendant damages for injury to her person, and to her means of support, resulting from illegal sales of intoxicants to her husband, if there is no evidence of any injury to her person, it is error to submit to the jury in instructions given the question of damages to her person.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 590-612; Dec. Dig. § 252.*]

9. Trial (§ 260*) — Duty to Instruct —Requests Embraced in Charge Given.

It is not reversible error for a trial court, having given one instruction thereon, to refuse to reiterate the same proposition by other instructions to the jury.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*)

10. Intoxicating Liquors (§ 317*)-Civil Damage Actions—Instructions.

In an action under said civil damage act it is not error to refuse to instruct the jury that if they believe from the evidence that the

[66 S.E. 1010]

plaintiff's means of support derived from her husband for the year preceding the date of his death was as much and as adequate as it had theretofore been, they should find for the defendant. The wife is entitled in each year to the best support, consistent with her station in life, that the husband in that year is capable of providing, and she should not be limited in her recovery by any such comparison.

[Ed. Note.—For other cases, see Intoxicating Liquors, Dec. Dig. § 317.*]

11. Intoxicating Liquors (§ 3122-*) — Civil Damage Actions—Instructions.

And it is error in such an action to instruct the jury that if they should find that the plaintiff's husband had at all times retained within the year prior to his death sufficient money and property to properly support her according to her station in life she could not recover.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 453-455; Dec. Dig. § 312.*]

12. Intoxicating Liquors (§ 299*) — Civil Damage Action — Damage — Sales by Agent.

In such an action against him a liquor dealer is responsible for actionable injuries caused by sales of liquor made by his agents or servants within the general scope of their employment, though the particular sale in question was made without his knowledge or consent, or even in disobedience to his general or specific orders.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 435; Dec. Dig. § 299.*]

13. Trial (§ 237*)—Civil Damage Actions-Instructions.

It is not error for the court in an instruction to the jury on the subject of the weight and preponderance of the evidence necessary to support the plaintiff's case to refuse to tell the jury "that they may arrive at this conclusion not from the number of witnesses who may have testified on either side of the case, but from the demeanor, character, reputation or credibility of the witnesses." Such an instruction unless some such word as "alone, " or "merely" be inserted after the word "not, " is calculated to mislead the jury and induce the belief that they have no right to consider the fact of the number of witnesses.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 54S-551; Dec. Dig. § 237.*]

14. Intoxicating Liquors (§ 318*) — Civil Damage Actions — Refusal to Submit Special Interrogatories.

It is error in the trial of such an action for the court, in the exercise of its discretion, to refuse to submit to the jury on the motion of the defendant a special interrogatory as to how much they had included in their verdict for actual damages, or in the alternative, how much was included therein for exemplary damages. It being one of the primary issues in the case, the plaintiff is entitled to know how much was found for actual damages, and thereby to ascertain the amount awarded for exemplary damages, and to be enabled thereby to test the correctness of the verdict on a motion for a new trial.

[Ed. Note.—For other cases, see Intoxicating-Liquors, Dec. Dig. § 318.*]

Error from Circuit Court, Tucker County.

Action by Diannah, T. Pennington against C. D. Gillaspie. Judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.

Cunningham & Stallings, for plaintiff in error.

J. P. Scott and J. Wm. Harman, for defendant in error.

MILLER, J. The first error assigned is the overruling of defendant's motion to strike out certain parts of the first count, and his demurrer-to the second count of the declaration.

Originally, the demurrer was general, and not to a particular count; and on the former hearing here, 63 W. Va. 541, 548, 61 S. E. 416, we held that the insufficiency of the second count did not vitiate the declaration as a whole. When the case went back for a new trial defendant then interposed his motion, and his demurrer to the second count, and the question now is presented whether the judgment of the court thereon was error prejudicial to the defendant calling for reversal.

The motion was to strike out of the first count the words, "when he lost his life as a consequence of the unlawful acts of the said defendant as hereinafter set forth"; also the words, "and prior to said mentioned day, and thence thereafter until his death occurred"; also the words, "up until his said death, " the purpose being to eliminate all reference to the death of plaintiff's husband, and to limit the evidence strictly to the...

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64 practice notes
  • Mullins v. Green, No. 12000
    • United States
    • Supreme Court of West Virginia
    • July 12, 1960
    ...Canning Company v. Klots Throwing Company, 98 W.Va. 487, 128 S.E. 280; Ice v. Maxwell, 70 W.Va. 186, 73 S.E. 274; Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 643; Johnson Foster, 66 W.Va. 453, 66 S.E. 643; Johnson v. Gould, 62 W.Va. 599, 59 S.E. 611; Butler v. Thompson, 52 W.Va. 311, 43 ......
  • Tennessee Gas Transmission Co. v. Fox, No. 10200
    • United States
    • Supreme Court of West Virginia
    • March 21, 1950
    ...Lisagor, [134 W.Va. 117] 100 W.Va. 154, 130 S.E. 125. The situation here is different from that which existed in Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 1009, cited by the applicant, in which this Court held that it was error for the trial court to refuse to submit to the jury a spec......
  • Wells v. Smith, No. 15243
    • United States
    • Supreme Court of West Virginia
    • November 18, 1982
    ...& W. Ry. Co., 81 W.Va. 548, 94 S.E. 979 (1918); Goodman v. Klein, 87 W.Va. 292, 300, 104 S.E. 726 (1920). In Pennington v. Gillaspie, 66 W.Va. 643, 658, 66 S.E. 1009 (1910), the Court approved the idea that the punitive damages must bear a reasonable relation to the actual The amount of .........
  • Searle v. Allstate Life Ins. Co.
    • United States
    • United States State Supreme Court (California)
    • April 4, 1985
    ...State v. Hale (1955) 129 Mont. 449, 291 P.2d 229, 235; Barton v. Thompson (1881) 56 Iowa 571, 9 N.W. 899; Pennington v. Gillaspie (1910) 66 W.Va. 643, 66 S.E. As already noted, we shall conclude herein that the trial court below committed reversible error in misallocating the burden of proo......
  • Request a trial to view additional results
64 cases
  • Mullins v. Green, No. 12000
    • United States
    • Supreme Court of West Virginia
    • July 12, 1960
    ...Canning Company v. Klots Throwing Company, 98 W.Va. 487, 128 S.E. 280; Ice v. Maxwell, 70 W.Va. 186, 73 S.E. 274; Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 643; Johnson Foster, 66 W.Va. 453, 66 S.E. 643; Johnson v. Gould, 62 W.Va. 599, 59 S.E. 611; Butler v. Thompson, 52 W.Va. 311, 43 ......
  • Tennessee Gas Transmission Co. v. Fox, No. 10200
    • United States
    • Supreme Court of West Virginia
    • March 21, 1950
    ...Lisagor, [134 W.Va. 117] 100 W.Va. 154, 130 S.E. 125. The situation here is different from that which existed in Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 1009, cited by the applicant, in which this Court held that it was error for the trial court to refuse to submit to the jury a spec......
  • Wells v. Smith, No. 15243
    • United States
    • Supreme Court of West Virginia
    • November 18, 1982
    ...& W. Ry. Co., 81 W.Va. 548, 94 S.E. 979 (1918); Goodman v. Klein, 87 W.Va. 292, 300, 104 S.E. 726 (1920). In Pennington v. Gillaspie, 66 W.Va. 643, 658, 66 S.E. 1009 (1910), the Court approved the idea that the punitive damages must bear a reasonable relation to the actual The amount of......
  • Searle v. Allstate Life Ins. Co.
    • United States
    • United States State Supreme Court (California)
    • April 4, 1985
    ...State v. Hale (1955) 129 Mont. 449, 291 P.2d 229, 235; Barton v. Thompson (1881) 56 Iowa 571, 9 N.W. 899; Pennington v. Gillaspie (1910) 66 W.Va. 643, 66 S.E. As already noted, we shall conclude herein that the trial court below committed reversible error in misallocating the burden of proo......
  • Request a trial to view additional results

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