{ "id": 2917548, "name": "Lila Marie McConnell, by Charles W. McConnell, Appellee, v. Emil Bogaert et al., Appellants", "name_abbreviation": "McConnell v. Bogaert", "decision_date": "1917-10-16", "docket_number": "Gen. No. 6,452", "first_page": "582", "last_page": "588", "citations": [ { "type": "official", "cite": "208 Ill. App. 582" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "152 Ill. 138", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 835311 ], "opinion_index": 0, "case_paths": [ "/ill/152/0138-01" ] }, { "cite": "159 Ill. 539", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "114 Ill. 224", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "198 Ill. 128", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "244 Ill. 239", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3411241 ], "opinion_index": 0, "case_paths": [ "/ill/244/0239-01" ] }, { "cite": "199 Ill. App. 20", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2973530 ], "opinion_index": 0, "case_paths": [ "/ill-app/199/0020-01" ] }, { "cite": "78 Ill. App. 356", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5788605 ], "opinion_index": 0, "case_paths": [ "/ill-app/78/0356-01" ] }, { "cite": "155 Ill. App. 259", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "128 Ill. App. 187", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2519814 ], "opinion_index": 0, "case_paths": [ "/ill-app/128/0187-01" ] }, { "cite": "16 Ill. App. 662", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 } ], "analysis": { "cardinality": 555, "char_count": 12314, "ocr_confidence": 0.513, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.30784902903605577 }, "sha256": "b7d9cbbc6dc42c075240d6b78b43035b44bc2e54dd24d8c5fa4e24b0dc87064c", "simhash": "1:122575f8b609af95", "word_count": 2137 }, "last_updated": "2023-07-14T15:40:32.195438+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lila Marie McConnell, by Charles W. McConnell, Appellee, v. Emil Bogaert et al., Appellants." ], "opinions": [ { "text": "Mr. Justice Niehaus\ndelivered the opinion of the court.\nThis is an action on the case based on section 9 of the Dramshop Act (J. & A. j[ 4609), and was brought by appellee, Lila Marie McConnell, a minor, by her next friend, against the appellants Emil Bogaert and Mathew Brady, keepers of dramshops at Moline, in Rock Island county, and the respective owners of the premises in which the dramshops were located and carried on, to recover damages to her means of support by reason of the death of her father alleged to have been caused in consequence of intoxication produced in whole or in part by the sale of intoxicating liquors to him by the dramshop keepers. The declaration consisted of two counts charging the death to have resulted in that way.\nThe appellants pleaded not guilty, and upon the trial the jury returned a verdict in favor of the appellee, assessing her damages at $4,500 upon which the court rendered judgment, and from this judgment an appeal is prosecuted.\nRobert B. G-odfrey, appellee\u2019s father, was a teamster employed by the City of Moline. On the evening of June 4, 1911, the deceased went to the saloon of the appellant Bogaert and drank some beer; from there he went to the saloon of the appellant Brady, where he had more drinks. Upstairs in the building where Brady\u2019s saloon is located is a dance hall, and a dance was in progress at that time, and with it a regular bar in operation. Godfrey spent considerable time there that evening. The last seen of him before the injury was about midnight at the door of the dance hall. A little later he was found seriously injured lying between the east and westbound tracks of the C., B. I. & P. Eailroad at a point about 2% blocks distant from the dance hall. He was taken to the hospital where he died 2 days after from his injuries.\nAt the time of the death of Godfrey he was a widower, and the appellee, his minor daughter, was supported by him. He was paying for her board and furnishing her clothing and other necessities. Two months after the death of Godfrey the appellee was legally adopted by one O. W. McConnell, who cared for her after that time, and she was still living with him at the time of the trial.\nIt is contended by appellants that to make them liable the liquor furnished must have contributed to the intoxication of the deceased in an appreciable and essential degree; and that the proof in this case was not sufficient under the rule stated. We are of the opinion that the proof was sufficient to satisfy the requirements of the law, and that it shows that the liquor sold contributed to the intoxication. It was said in O\u2019Halloran v. Kingston, 16 Ill. App. 662, that: \u201cNo doubt to meet just such cases the statute was devised, when it laid its penalty upon \u2018the person or persons who may have caused the intoxication in whole or in part.\u2019 And while those who contribute in a small degree may be thus made to suffer as much as those who are more culpable, yet it is a condition which is applied to the traffic in liquors, which the Legislature had the power to impose, and which the courts cannot ignore.\u201d In the case of Hall v. Ditto, 128 Ill. App. 187, an instruction asked by the defendant in that case on the point involved, which was as follows: 1 \u2018 That the plaintiff would not be entitled to recover unless the jury believed from a preponderance of the evidence that the liquor sold * * * by the defendant * * * contributed to the intoxication \u2018in an appreciable and essential degree, \u2019 \u201d was refused to be given by the trial court, and the\u2019 Appellate Court held that: \u201cIf the liquor sold caused the intoxication in whole or in part, the effect was \u2018appreciable\u2019 in an \u2018essential\u2019 degree, sufficient to meet the requirements of the statute. The statute is plain in language and context, not requiring interpretation, and the instruction prop\u00f3sed by appellant, if not positively vicious, was well calculated to confuse rather than enlighten the jury.\u201d And Eggers v. Hardwick, 155 Ill. App. 259, is to the same effect.\nBut, assuming the law to be as contended by appellants, they are in no position to complain, as the jury were advised by the trial judge in two instructions asked by appellants that the intoxicating liquors must have contributed to an essential and appreciable degree to the intoxication. The appellants contend that the proof in this case only shows the sale of 3 glasses of beer to the deceased; but there is also evidence tending to show at least 15 sales of beer within 3 hours, and the jury were justified in finding at least that many sales from the proof. The appellee also sought to prove that the deceased went upstairs into the dance ball above one of those saloons where there was a regular bar in operation, and there had a great many drinks; but this testimony was kept out on the objection of appellants.\nThe law is, that a plaintiff- can prove that intoxication was caused partly by other saloon keepers thathe defendants. (Wanack v. Alexander, 78 Ill. App. 356; McIntire v. Morris, 199 Ill. App. 20.) It is incumbent upon the plaintiff in a case of this kind to prove that the deceased became intoxicated, and in some instances can only prove that by persons who saw him drink in different places. This then may become a necessary part of the proof of contributing to the intoxication, and hence this testimony offered was competent; but the testimony having been kept out by appellants\u2019 objections they are not in a position to complain that there is not sufficient proof of the number of drinks taken to show intoxication. There was proof, also, by other witnesses, that later in the evening the deceased was intoxicated.\nAppellants have argued this case as if the deceased left him surviving two daughters, but there is no proof in the record that any child survived him other than the appellee.\nIt appears that 2 months after the death of plaintiff\u2019s father she was adopted by C. W. McConnell, as his daughter, and the appellants sought to prove that McConnell was well-to-do, and thereby to show that she was really benefited by her father\u2019s death, and that her means of support were then otherwise provided for, which evidence was rejected by the court. It is strongly urged by the appellants that this evidence was competent and should have been admitted. We regard what was said in Deel v. Heiligenstein, 244 Ill. 239, as decisive on this point, namely, subsequent, advantageous change in the plaintiff\u2019s circumstances cannot be given in evidence by defendant in mitigation of damages, and that the same does not diminish the damages.\nIt is also urged that the damages are excessive. Godfrey, the father of the appellee, was earning $50 per month, and was spending $3 per week for the appellee for her board; also buying her clothing and other necessaries, and talcing care of her. At the time of his death the appellee was between 6 and 7 years of age, and at the time of the trial she was ahont 12 years of age. While the recovery can only be had for pecuniary loss, manifestly that loss is the value of the life of the parent; then there is the value of the father\u2019s services in the attention to and care and superintendence of his children, and in their education, of all of which they are deprived by his death, and all these matters are elements of pecuniary damages, (O\u2019Fallon Coal & Mining Co. v. Laquet, 198 Ill. 128.) The plaintiff had a right to support from her father during her minority, and to a reasonable expectation of benefit, as of right, or as of grace or favor, from the continuance of his life. (City of Chicago v. Keefe, 114 Ill. 224; Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 539; Ohio & M. Ry. Co. v. Wangelin, 152 Ill. 138.) In view of the authorities and the facts involved, we cannot say that the amount of the judgment is excessive. The trial court gave all the instructions asked by the appellants, and the jury were very strongly instructed for their behalf. We find no reversible error in the record. The judgment is affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Niehaus" } ], "attorneys": [ "Joseph L. Haas, for appellants.", "Dietz & Sinnett, for appellee." ], "corrections": "", "head_matter": "Lila Marie McConnell, by Charles W. McConnell, Appellee, v. Emil Bogaert et al., Appellants.\nGen. No. 6,452.\n1. Intoxicating liquors, \u00a7 227 \u2014when evidence shows that liquor furnished by defendants contributed to intoxication of father of plaintiff. In an action hy a minor against saloon keepers under section 9 of the Dramshop Act (J. & A. If 4609), to recover for the death of plaintiff\u2019s father, alleged to have been due to intoxication caused hy liquor purchased of defendants, evidence held sufficient to show that the liquor furnished hy defendants to the decedent contributed to his intoxication, to satisfy the requirements of the Dram-shop Act, without showing that it contributed in an appreciable and essential degree.\n2. Intoxicating liquors, \u00a7 261 \u2014when defendants may not complain of failure of proof that liquor furnished, decedent contributed to his intoxication. In an action by a child, against saloon keepers to recover for the death of her father as the result of intoxication, held that defendants were not in position to complain that the proof was insufficient to show that the liquor furnished decedent 'by them contributed to his intoxication in an appreciable and essential degree, where the jury were advised in instructions asked' by defendants that such liquor must have so contributed to such intoxication, and the evidence warranted a finding at least 15 glasses of beer were sold to him in 3 hours.\n3. Intoxicating liquors, \u00a7 208*\u2014when plaintiff may show that intoxication was caused by other saloon keepers than defendants. In an action under the Dramshop Act to recover for the death of plaintiff\u2019s father, claimed to have been due to intoxicating liquor furnished by defendant saloon keepers, plaintiff can prove that intoxication was caused by saloon keepers other than the defendants.\n4. Intoxicating liquors, \u00a7 261*\u2014when defendants may not complain of insufficient proof to show intoxication. Where testimony that other than defendants contributed to a party\u2019s intoxication was kept out by defendants, in an action under the Dramshop Act, defendants were not in position to complain of insufficient proof to show intoxication.\n5. Intoxicating liquors, \u00a7 218*\u2014when evidence as to change in circumstances of plaintiff is inadmissible. Subsequent advantageous change in the circumstances of a plaintiff, in an action to recover damages for death of plaintiff\u2019s parent under the Dramshop Act, cannot be given in evidence in mitigation of damages, and same does not diminish the damages.\n6. Intoxicating liquors, \u00a7 245*\u2014when verdict is not excessive in action for death of parent. In an action under the Dramshop Act to recover for the death of plaintiff\u2019s father, held that a verdict for $4,500 was not excessive for the loss of the father, where he had been earning $50 a month, spent $3 a week for her board, bought her clothing and other necessaries and took care of her, and she was 6 or 7 years old at the time of his death and 12 years old at the time of trial.\n7. Intoxicating liquors, \u00a7 233*\u2014what are proper elements of damages in an action for death of parent. In an action under the Dramshop Act to recover damages for the death of plaintiff\u2019s parent, the value of his life, the value of his services in the attention to and care and superintendence of his children and in their education, of which they are deprived by his death, were proper elements of pecuniary damage.\n8. Pabent and child, \u00a7 11 \u2014what are rights of child, as to support hy parent. A child is entitled to support from her father during her minority and to a reasonable expectation of benefit, as of right or as of grace or favor, from the continuance of his life.\nAppeal from the Circuit Court of Bock Island county; the Hon. William T. Chub oh, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).\nAffirmed.\nOpinion filed October 16, 1917.\nJoseph L. Haas, for appellants.\nDietz & Sinnett, for appellee.\nSee Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Yds. XI to XV, and Cumulative Quarterly, same topic and section number." }, "file_name": "0582-01", "first_page_order": 606, "last_page_order": 612 }