Wolfe v. Johnson

• Decision Date: 29 October 1894
• Citation: 152 Ill. 280,38 N.E. 886
• Parties: WOLFE v. JOHNSON.
• Court: Illinois Supreme Court

152 Ill. 280

38 N.E. 886

WOLFE

v.JOHNSON.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from appellant court, Second district.

Action on the case by Mary Johnson against Richard Wolfe. Plaintiff obtained judgment, which was affirmed by the appellate court. 45 Ill. App. 122. Defendant appeals. Affirmed.

M. T. Moloney, for appellant.

Mayo & Widmer, for appellee.

BAKER, J.

This is an action of trespass on the case, brought by Mary Johnson against Richard Wolfe, in the circuit court of La Salle county, under section 9 of the dramshop act (Rev. St. c. 43), to recover damages for injury to her in her person and in her means of support, occasioned by reason of the intoxication of her husband, one Julius Johnson, caused by the sale and gift to him of intoxicating liquors by appellant, who was engaged in the business of selling intoxicating liquors, and was the owner of the building and premises in which such intoxicating liquors were sold. The cause was tried in said court, and the jury awarded appellee $1,000 damages against appellant, and judgment was entered on the verdict. From that judgment appellant appealed to the appellate court, and from the judgment of affirmance in the appellate court he prosecutes this further appeal.

The facts of the case have been settled by the judgment of the appellate court in favor of appellee. The declaration, as originally filed, contained three counts. The first charged appellant with being the keeper of a dramshop, and that, being such keeper of a dramshop, he sold and gave intoxicating liquors to the husband of appellee, one Julius Johnson, who exercised the trade of a tailor, and caused him to become intoxicated, and to continue habitually so, whereby she was injured in her means of support. The second count was like the first, with this addition: that it charged appellant with being, not only the keeper of a dramshop, but also the owner of the building and premises in which such dramshop was kept. The third count was for injuries to her person, alleged to have been received by appellee by reason of having been assaulted and thrown down on the ground by her husband while he was intoxicated, in consequenceof the intoxication produced by the liquors sold and given to him by appellant. In the trial court, after the evidence had been heard and the arguments of counsel were concluded, and before the instructions were given to the jury, appellee, by leave of court, and over the objection of appellant, amended her declaration, and filed an additional count. The amendments were as follows: In the first count the words ‘the keeper of a dramshop’ were stricken out, and the words ‘engaged in the business of selling intoxicating liquors' were inserted in their stead. In the second count the words ‘the keeper of a dramshop and the owner of the premises in which such dramshop was kept’ were stricken out, and in lieu thereof the words ‘was the owner of certain premises in which a dramshop or saloon was kept, and, being such owner, at such saloon or dramshop,’ were inserted. In the third count the words ‘was the keeper of a dramshop, and, being such keeper of a dramshop,’ were stricken out, and in their place the words ‘was owner of certain premises in which a dramshop or saloon was kept, and, being such owner,’ were inserted. The additional count charged that one James Wolfe was the keeper of a dramshop, and, being such keeper of a dramshop, sold intoxicating liquors to appellee's husband, thereby causing him to become intoxicated; that appellant was, and before that time had been, the owner of the building and premises in which such dramshop was kept; that he had knowledge that a dramshop was kept in said building, and that intoxicating liquors were, and were to be, sold therein; and that he permitted the said James Wolfe to keep a dramshop in said building and premises, and to sell intoxicating liquors therein; and that in consequence of such intoxication, so as above produced in her husband, he violently assaulted and threw her down, thereby severely bruising and injuring her, etc.; and that appellant was liable to her as such owner of said premises, etc. After the filing of the above amendments, his demurrer to the declaration and additional count having been overruled, appellant moved for a continuance of the cause, which motion was overruled. Appellant contends that a continuance should have been granted, and that it was error to overrule his motion, for the alleged reason that the amendments to the...