#### Audrey Austin, by Lora Austin, Appellee, v. Nell Bass and James C. Harris, Appellants.

(Not to be reported in full.)

Appeal from the Circuit Court of Williamson county; the Hon. W. O. Potter, Judge, presiding. Heard in this court at the October term, 1917.

Reversed and remanded.

Opinion filed April 5, 1918.

Statement of the Case.

Action by Audrey Austin, a minor, by her next friend, Lora Austin, plaintiff, against Nell Bass and James C. Harris, defendants, under section 9 of the Dramshop Act (J. & A. 4609), to recover damages for the death of plaintiff’s father, alleged to have been caused by intoxication produced by intoxicating liquors sold and given him by defendant Bass in a dramshop operated by her in premises leased from defendant Harris. It appeared that plaintiff’s father became intoxicated while drinking in such dramshop *2with defendant Bass, who also became intoxicated, and that she shot and killed him. From a judgment for plaintiff for $1,750, defendants appeal. The same state of facts is involved as in Austin v. Bass, 206 Ill. App. 435, which decision controls the case at bar.

Abstract of the Decision.

1. Intoxicating liquors, § 189* — when landlord and saloon Keeper not liable for death of intoxicated person Killed by intoxicated saloon Keeper. In an action under section 9 of the Dram-shop Act (J. & A. f 4609) to recover damages for the death of a parent alleged to have been caused by intoxication produced by intoxicating liquors purchased in the saloon operated by one defendant in a building leased from the other defendant, there can be no recovery where the death was caused by the saloon keeper, while intoxicated, shooting and killing such parent, even though the latter was also intoxicated at the time from drinking liquor sold and given him by the saloon keeper.

2. Intoxicating liquors, § 240 * — when awarding of exemplary damages proper in action under section 9 of Dramshop Act. To recover exemplary damages in an action under section 9 of the Dramshop Act (J. & A. f 4609), it must be shown that the sale was made under aggravating circumstances on the part of the parties selling, or was wantonly or wilfully made.

3. Intoxicating liquors, § 250* — when instruction on exemplary damages in action under section 9 of Dramshop Act is erroneous. In an action under section 9 of the Dramshop Act (J. & A. If 4609), it is error to give an instruction telling the jury that exemplary damages may be recovered by merely proving that intoxicating liquors were sold to one who became intoxicated therefrom, if the person suing was thereby injured in his means of support, without also advising them when exemplary damages may be found and ignoring the requirement that the proof show a sale under aggravating circumstances on the part of the seller or that he acted wantonly or wilfully in making it.

Denison & Spiller, for appellants.

No appearance for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Higbee

delivered the opinion of the court.