Wanack v. People ex rel. Alexander

• Decision Date: 19 October 1900
• Citation: 187 Ill. 116,58 N.E. 242
• Parties: WANACK v. PEOPLE, to use of ALEXANDER et al.
• Court: Illinois Supreme Court

187 Ill. 116

58 N.E. 242

WANACK

v.PEOPLE, to use of ALEXANDER et al.

Supreme Court of Illinois.

Oct. 19, 1900.

1. A declaration in an action against the surety on a liquor license bond, alleging that the principal obtained a license to keep a dramshop in the city of T., executing a bond conditioned according to the provisions of the dramshop act, and that on December 1, 1896, and at divers times between that date and February 12, 1897, and particularly on February 11th, he sold intoxicating liquors to plaintiff's husband, by reason of which he became intoxicated, and fell from his wagon, and was killed, leaving plaintiff and her children, who were residing with him as members of his family, and who, by his death, were injured in their means of support, stated a cause of action, and was not obnoxious to a general demurrer.

2. That plaintiff recovered judgment against a saloon keeper and the owner of the premises on which the saloon was situated for illegally selling liquor to her husband was not a bar to a subsequent action against the saloon keeper's bondsman, where satisfaction of the judgment had not been obtained.

3. Where plaintiff had recovered judgment against a saloon keeper for the illegal sale of liquor to her husband, such judgment was conclusive on the surety on the saloon keeper's bond, and hence was properly received in evidence on the question of damages in an action against the latter, after he had made default.

4. Where plaintiff had recovered judgment against a saloon keeper for illegally selling liquor to her husband, the fact that she might have obtained exemplary damages in such action did not render the judgment inadmissible on the question of damages in an action against the surety on the saloon keeper's bond.

5. Where defendant defaulted in an action against him as surety on a saloon keeper's bond, and a prior judgment in an action by plaintiff against the saloon keeper was offered in evidence on the question of damages, the reception of testimony of plaintiff's attorney in the former action that exemplary damages were not asked therein was harmless error.

6. Where default was entered against defendant, as surety on a saloon keeper's bond, and defendant failed to move to set aside the award of damages against him, he could not question the sufficiency of proof of damages on appeal.

Appeal from appellate court, Third district; William M. Farmer, Judge.

Action by the people, for the use of Dora Alexander and her children, against Tobias Wanack, as surety on the bond of Charles L. Wanack, for damages resulting from the illegal sale of intoxicating liquor to plaintiff's husband. From a judgment of the appellate court (87 Ill.App. 371) affirming a judgment of the circuit court in favor of plaintiffs, defendant appeals. Affirmed.

This suit was begun in the circuit court of Christian county by the people, etc., for the use of appellees, the widow and children of John Alexander, deceased, against appellant, as surety on the dramshop bond of one Charles L. Wanack. The declaration sets forth the bond sued upon, which was executed on September 21, 1896, conditioned according to the provisions of section 5 of the dramshop act (chapter 43, Rev.St.1898), in the usual form of such bond. It is therein averred that the defendant Charles L. Wanack, after the execution and delivery of the bond, obtained from the city council of the city of Taylorville a license to keep a dramshop; that on the 1st day of December, 1896, and at divers other times between that time and the 12th of February, 1897, and particularly on the 11th of that month, at his place of business where he was keeping said dramshop, defendant sold, furnished, and gave to John Alexander intoxicating liquors, by reason of which selling, furnishing, and giving, he, the said John Alexander, on the 11th day of February, 1897, became intoxicated, in consequence of which he fell from his wagon, and was killed, leaving the said Dora Alexander, his widow, and Homer, Cocoa, Ora, and Merle Marie Alexander, his children, who were all, at the time of said death, residing with him as members of his family, and who, by the death of the said John Alexander, were then and there injured in their means of support. It is then averred that afterwards the widow and children brought a suit against Wanack, impleaded with one William Sanders, Cedora Sanders, and Peter Michels, in an action on the case, setting forth in detail the proceedings in that suit, from which it appears that it was dismissed as to William and Cedora Sanders and proceeded to final judgment against Charles L. Wanack, the saloon keeper, and Peter Michels, the owner of the building and premises in which the intoxicating liquors were sold; the judgment being for $2,000 and costs of suit. Then follows an averment as to the identity of persons in that suit and this, so far as they are identical, and that the defendant in this suit had knowledge of the pendency of that suit, and assisted in the defense; that plaintiffs paid out certain moneys for costs and attorney fees; and concludes: “By means of which premises the plaintiffs have sustained damages to the amount of $3,000, yet said defendant has not paid the sum, or any part thereof, nor has the said Charles L. Wanack or the said Peter Michels paid said judgment, or any part thereof, but that the said judgment still remains unpaid and unsatisfied, whereby, and by force of the statute in such case made and provided, an action has accrued to the plaintiffs to demand of said defendant, for the use aforesaid, the sum of $3,000 as their debt, and the further sum of $3,000 as their damages,” etc. To this declaration the defendant interposed a general demurrer, which, being overruled, he filed several pleas, but afterwards withdrew the same, and elected to stand by his demurrer to the declaration. Thereupon judgment nil dicit was entered, to which the defendant excepted, and the court, having heard the evidence, assessed the plaintiffs' damages at $2,000, and entered a judgment in favor of the plaintiffs for $3,000 debt (the amount of the bond), to be discharged on the payment of $2,000 damages. The evidence introduced was the proceeding and judgment in the action set up in the declaration and the testimony of one of the attorneys in that suit to the effect that no exemplary damages were claimed in that action.

Rufus M. Potts and Hogan & Drennan, for appellant. J.C. & W.B. McBride and Frank P. Drennan, for appellees.

WILKIN, J. (after stating the facts).

The demurrer to the declaration being general, the principal question in the case is, does it state a good cause of action? The contention on behalf of the appellant that it does not is stated as follows: “That the bond set up and...