Pennington v. Gillaspie
| Decision Date | 25 January 1910 |
| Parties | PENNINGTON v. GILLASPIE. |
| Court | West Virginia Supreme Court |
Submitted September 9, 1909.
Syllabus by the Court.
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.
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 judgement will not be reversed solely on this ground.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
Error from Circuit Court, Tucker County.
Action by Diannah J. 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.
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 question of damages to plaintiff's person and means of support, by reason of the unlawful sales made to him prior to his death. The grounds of the court's ruling upon said motion and demurrer, as stated in its order and certified in the bill of exceptions was, "that the questions presented thereby could and would be acted upon by the court at the trial of the case," and that the plaintiff's attorney had stated that he would not offer any evidence under the second count. If the court had stricken out these words of the first count, there remained other words alleging the date of the death of plaintiff's husband, and that defendant continued to sell him intoxicating liquors up to that time--words equally as objectionable as those covered by the motion. With those words in how could defendant have been prejudiced by the action of the court on his motion? Besides, it clearly appears that these allegations were intended simply to fix the date of the death of deceased, and not as a foundation of recovery, and inasmuch as on the trial the court, by its rulings on the evidence and on instructions given the jury, limited plaintiff in her recovery to injuries sustained prior to the death of her husband, we see no reversible error in this action of the court.
But the ruling on the demurrer presents a more serious question. Clearly the second count is bad, and the demurrer should have been sustained. But has the defendant been prejudiced thereby? Very high authority says: ...
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