Schmidt v. Mitchell

• Decision Date: 30 September 1876
• Citation: 25 Am.Rep. 446,1876 WL 10471,84 Ill. 195
• Parties: MATTHIAS SCHMIDT et al.v.MARY MITCHELL.
• Court: Illinois Supreme Court

84 Ill. 195

1876 WL 10471 (Ill.)

25 Am.Rep. 446

MATTHIAS SCHMIDT et al.

v.MARY MITCHELL.

Supreme Court of Illinois.

September Term, 1876.

APPEAL from the Circuit Court of Whiteside county; the Hon. WILLIAM W. HEATON, Judge, presiding. Messrs. SACKETT & BENNETT, for the appellants.

Messrs. KILGOUR & MANAHAN, and Mr. M. H. WILLIAMS, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action, brought by Mary Mitchell, against appellants, who are alleged to have sold the plaintiff's husband intoxicating liquors which caused his intoxication, by reason of which, and while the same continued, he became quarrelsome, and made a disturbance in the night, at the house of one Henry Friedenbach, and while making such disturbance, and by reason thereof, the said Mitchell, the husband of the plaintiff, received a mortal wound from a bullet discharged at him from a pistol used by said Friedenbach in defense of his house, of which wound Mitchell died.

The court overruled a motion for a change of venue, and this is the first error relied upon by appellants. Section 9, chapter 146, Revised Statutes of 1874, page 1094, declares, where there are two or more plaintiffs or defendants, a change of venue shall not be granted unless the application is made by or with the consent of all the parties plaintiff or defendant, as the case may be.

It appears that the petition for a change of venue was presented by one of the three defendants. At the time the motion was made, the other two defendants consented, but before any action was taken by the court, one of the defendants withdrew his consent, and, when the motion came on for a hearing, he filed a written protest against the venue being changed. We see no reason why one defendant may not revoke the authority given a co-defendant to present a petition of this character, at any time before the court has acted upon it. If this may be done, the court could not do otherwise than deny the application, because, under the statute, the venue could not be changed without the consent of all the defendants, and they did not all consent. On the trial, the defendants offered to prove by Dr. Snyder that he was the attending physician and surgeon called by Mitchell to treat him the same night and soon after the injury was received by him; that, as such physician, he instructed Mitchell that he should not use his leg by walking upon it, as it would be dangerous, and might produce inflammation or some other difficulty; that Mitchell disregarded such orders, and did, within a few days after the injury, use his leg by walking upon it, and that these instructions were given on the night of the injury, and several times afterwards. The offered evidence the court would not admit to the jury, and the decision is relied upon as error.

The evidence which was introduced tends to prove that Mitchell, the husband of the plaintiff, was in the habit of getting intoxicated, and, when in that condition, he was quarrelsome. It also appears that, on the afternoon and evening of January 25, 1874, he obtained of the defendants, at their saloons in Sterling, liquors, and became intoxicated. He resided some six or eight miles from Sterling, on the farm of Henry Friedenbach. About 10 o'clock at night, he started home, and near midnight he made an attack on the house of Friedenbach, and, while in the act of breaking in the windows, he was shot in the thigh, some four inches below the groin. A surgeon was at once called to treat the wound. For five or six days, Mitchell appeared to be recovering from the effect of the injury. After that, however, for some cause, the symptoms became unfavorable and dangerous, and, upon a consultation of surgeons, it was thought best to amputate the leg. On the 6th day of February the operation was performed, and in about three hours Mitchell died.

It is clear, from the evidence, that appellee has been injured in her means of support, and the proposition does not admit of controversy, that, if the death was the natural and proximate result of the intoxication produced, in whole or in part, by liquors obtained of appellants, then appellee's right of recovery can not be questioned; but if the wound received by Mitchell was slight, and not in itself dangerous, and his death resulted from a failure to observe proper care and precaution after the injury, the loss plaintiff sustained could not be regarded as a direct consequence of the intoxication, for which the defendants should respond in damages.

If a person, while intoxicated, should receive a slight wound upon the arm, in consequence of the intoxication, the liquor dealer who sold the liquors that produced the intoxication might be responsible for the direct consequences which would naturally flow from the injury received; but suppose the person injured, after he became sober, should, in a reckless manner, expose himself, and the exposure should result in inflammation and gangrene in the limb to such an extent that amputation was necessary, the loss occasioned by such misconduct could not be visited upon the vender of the liquor.

Parsons (vol. 3, page 177) says: “It is sometimes difficult to draw the line between what are and what are not the natural consequences of an injury. Always, however, if the consequences of the act complained...