Pete v. Lampi
| Decision Date | 09 December 1921 |
| Docket Number | 22,400,22,403,22,410 |
| Citation | 185 N.W. 653,150 Minn. 423 |
| Parties | ELIZABETH PETE v. JACOB LAMPI, THE AETNA CASUALTY & SURETY COMPANY AND SOUTHERN SURETY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county against Jacob Lampi and the sureties on his bond to recover $75,000 for the death of plaintiff's husband. The case was tried before Fesler, J., who when plaintiff rested denied defendants' separate motions for dismissal of the action and at the close of the testimony denied their separate motions for directed verdicts, and a jury which returned a verdict in favor of plaintiff and against defendant Lampi for $9,746; against Southern Surety Company for $2,500 and against defendant Aetna Casualty & Surety Company for $2,000. From orders denying their separate motions for judgment notwithstanding the verdicts or for new trial, defendants took separate appeals. Orders denying motions for judgment notwithstanding verdict affirmed; orders denying motions for new trial reversed.
Death caused by illegal sale of intoxicating liquor.
1. Action to recover for the loss to plaintiff in her means of support caused by intoxicating liquor illegally sold to her deceased husband by defendant Lampi. The evidence sustains the finding that Lampi had sold intoxicating liquor to him in violation of law, and that his death resulted from acute alcoholism.
Opinion of medical expert.
2. Where the testimony of a medical expert, taken by deposition disclosed that his opinion as to the cause of death was based in part on facts ascertained from third parties out of court but such facts have been established at the trial by other evidence before the deposition was read, his opinion was properly received in evidence.
Inaccurate hypothetical question -- refusal to strike question and answer.
3. Where an expert gives his opinion in answer to a hypothetical question which contained minor inaccuracies, but his subsequent testimony showed that such inaccuracies had no part in the formation of his opinion, the court properly refused to strike the question and answer.
Authenticated copy of death record.
4. The claim that the copy of the record of death is not authenticated by the proper officer, is not borne out by the record as it is certified by the state registrar.
Bank book admissible in evidence.
5. The bank book of the deceased was properly received in evidence as having some bearing on his financial condition.
New trial -- inclusion of damages for period before death.
6. The evidence will not warrant a finding that plaintiff sustained a loss in her means of support prior to the death of her husband, and, for the error in permitting the jury to award damages for a period of some two and one-half years prior to that date, there must be a new trial.
Recovery against surety for illegal sales.
7. If it be shown that illegal sales to the deceased, made during the period covered by a surety bond, substantially contributed to cause the ailment which produced death, a recovery may be had against the surety.
Charge erroneous.
8. It was error to instruct that the certificate of death was conclusive proof of the facts therein stated, unless rebutted by competent evidence.
Victor H. Gran, John J. Fee, George H. Spear and Russell P. Fischer, for appellants.
John Jenswold and John D. Jenswold, for respondent.
The defendant Lampi kept a saloon in the city of Ely in St. Louis county for many years. The defendant Southern Surety Company was the surety on his bond in the sum of $2,000 for a period of one year beginning June 5, 1915, and was also the surety on his bond in the same sum for a further period of one year beginning June 5, 1916. The defendant Aetna Casualty & Surety Company was the surety on his bond in the same sum for a period of one year beginning June 5, 1917. The three bonds, each for the period of one year, covered the three years between June 5, 1915, and June 5, 1918. The plaintiff was the wife of Herman Pete who died December 29, 1917. In September, 1919, plaintiff brought this action, under section 3200 of the General Statutes of 1913, against Lampi and his bondsmen, alleging that Lampi had illegally sold intoxicating liquor to her husband during the period covered by these bonds, in consequence of which he died on December 29, 1917, from acute alcoholism, and that she had been injured in her means of support by the intoxication caused by the liquor so illegally sold. The trial resulted in a verdict against Lampi in the sum of $9,746; against the Southern Surety Company in the sum of $2,500; and against the Aetna Casualty & Surety Company in the sum of $2,000. Each of the defendants made a motion for judgment notwithstanding the verdict or for a new trial, and appealed from the order denying the motion.
Herman Pete had been a hard periodic drinker for many years. In 1914 he went to the hospital for inebriates at Wilmar and thereafter refrained from drinking for some months. He then began drinking again, and as time passed his "sprees" became more frequent and more protracted. On the afternoon of his death, he sat in an arm chair in Lampi's saloon for a long time in a drunken sleep or stupor. Late in the afternoon he fell from the chair to the floor, was moved into a small adjoining room and was subsequently found to be dead. The deputy coroner, Dr. Ayres, was called. He took charge of the body and on the following day caused an autopsy to be made.
Dr. Ayres was not present at the trial, but his deposition, previously taken, was read to the jury and is the only expert testimony in the case. The doctor testified that the autopsy disclosed nothing abnormal in any of the vital organs of the deceased, and nothing from which the cause of death could be determined. In answer to a hypothetical question requiring him to assume facts, some of which in minor particulars were not quite in accord with the facts proven at the trial, he stated that in his judgment the deceased died from acute alcoholism. On cross-examination he stated that his opinion, that death was caused by acute alcoholism, was not based on anything disclosed by the autopsy, but on the fact that the deceased had been a heavy habitual drinker for many years and had indulged in excessive and protracted drinking on the day of his death, and on the further fact that he was unable to find any other reasonable explanation of the cause of death. It further appeared from the cross-examination that the doctor had known Mr. Pete for some 20 years and had personal knowledge of his drinking habits, but had no personal knowledge of what happened on the day that he died, and that the doctor's information concerning what happened on this day was obtained from others in the examination which he made as coroner. On the redirect examination the doctor testified, in part, as follows:
Defendants earnestly contend that both the hypothetical question and the doctor's opinion as to the cause of death should have been excluded. They insist that his opinion was based on hearsay information obtained from unknown third parties outside of court, and was inadmissible for that reason under the rule stated and applied in Miller v. St. Paul City Ry. Co. 62 Minn. 216, 64 N.W. 554; Webb v. Minneapolis St. Ry. Co. 107 Minn. 282, 119 N.W. 955; and Thompson v. Bankers M.C. Ins. Co. 128 Minn. 474, 151 N.W. 180, Ann. Cas. 1916A, 277. As said in these cases:
"Medical expert cannot be allowed to give his opinion on information which he has obtained out of court from third parties other than the patient."
But the doctor's testimony shows that the facts on which he based his opinion were all within his personal knowledge, except the fact that Herman Pete had indulged in excessive and protracted drinking on the day of his death. This fact had been established by other evidence before the deposition was read, and we think the ruling admitting his opinion in evidence was correct within the principle applied in Thompson v....
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