{ "id": 5162641, "name": "John E. A. Johnson v. Ellen McCann, John McCann, Patrick McCann, Bessie McCann, Clara McCann, Jennie McCann and Leslie McCann, by Bridget McCann, Their Next Friend", "name_abbreviation": "Johnson v. McCann", "decision_date": "1895-11-15", "docket_number": "", "first_page": "110", "last_page": "114", "citations": [ { "type": "official", "cite": "61 Ill. App. 110" } ], "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. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 835376 ], "opinion_index": 0, "case_paths": [ "/ill/152/0321-01" ] }, { "cite": "106 Ill. 263", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2782716 ], "opinion_index": 0, "case_paths": [ "/ill/106/0263-01" ] }, { "cite": "29 N. E. Rep. 208", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 } ], "analysis": { "cardinality": 445, "char_count": 8971, "ocr_confidence": 0.511, "pagerank": { "raw": 5.023770487068769e-08, "percentile": 0.3162597510511231 }, "sha256": "d65846d6042436b636dd1ec3d0fc0b46ec6cf4e6fdfa7d0c43da0fa2cc21a127", "simhash": "1:6826c8db1a473940", "word_count": 1551 }, "last_updated": "2023-07-14T20:50:02.966731+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John E. A. Johnson v. Ellen McCann, John McCann, Patrick McCann, Bessie McCann, Clara McCann, Jennie McCann and Leslie McCann, by Bridget McCann, Their Next Friend." ], "opinions": [ { "text": "Mr. Justice Boggs\ndelivered the opirior op the Court.\nThe appellees, minor children of Barney McCann, were given by the statute (Sec. 9, Chap. 43) a right of action to recover damages for injury to their means of support by reason of the intoxication of the father.\nThis right is wholly independent of the like right given the wife by the statute.\nIt may be prosecuted by a child in his or her own name. Such is the express provision of Sec. 9, Chap. 43, E. S.\nHence, release by the wife could not operate to prejudice an action by the children.\nShe had no authority by reason of the relation of parent and child to compromise or adjust and discharge their claim for damages. Is or is it so claimed.\nThe position that as next friend she was empowered to make settlement for the children, is untenable for two reasons:\nFirst, when the settlement was made she had not been appointed or recognized by the court as their next friend, and was not acting in that capacity.\nSecond, the appointment of a next friend does not confer authority upon the appointee to compromise or settle the subject-matter of the litigation. An order of the court directing or approving such a settlement is indispensable to make it effectual and binding. Tripp v. Gifford (Mass.), 29 N. E. Rep. 208, and authorities there cited.\nThe court over the objection of the appellant permitted witnesses to testify the children were in a destitute condition, and that they and other neighbors donated flour, potatoes, coal, clothing, etc., to relieve their wants.\nSpeaking of testimony of this character it was said in Flynn v. Fogarty, 106 Ill. 263, it had no bearing upon the issue whether the children had been injured in their means of support by the alleged intoxication of the father, and had no other effect than to arouse the sympathies of the jury in favor of the plaintiffs and divert their attention from the real issues in the case and cause them to find damages not warranted by the facts.\nIn the case at bar it was indisputably proven, and not denied, that appellant, on many different occasions, sold intoxicating liquor to the father of the plaintiffs, and thereby, in whole or in part, caused him. to become intoxicated. It was also as well proven and not controverted the children (plaintiffs below) were injured in their means of support by reason of such intoxication of the father.\nHence the judgment ought not to be disturbed upon the ground that evidence was received which was incompetent for the reason it tended to divert the attention of the jury from these issues.\nIt was not complained in the trial court, nor is it assigned as error here, that the damages allowed are excessive.\nThe incompetent evidence did not therefore operate to cause the jury \u201c to find damages not warranted by the facts.\u201d\nThe admission of incompetent evidence does not work a reversal if the court can clearly see it was not prejudicial to the appellant.\nIt is urged the court erred in giving the following instruction:\nFourth. \u201c The court instructs the jury that it is not for them to inquire into or consider the propriety of the law in force relating to the sale of intoxicating liquors under which this action is brought. The law as it now stands upon the statute books of this State should be enforced, and if the jury believe from a preponderance of the evidence in this case that the defendant, John E. A. Johnson, contributed to the intoxication of said Barney McCann by sales of intoxicating liquors to said Barney McCann, if such intoxication has been proven by a preponderance of the evidence in this case, and that said Barney McCann was a person in the habit of becoming intoxicated, and that in consequence of such intoxication, the plaintiffs have been injured in their means of support by reason of such intoxication, then the jury should find for the plaintiffs and against the defendants, John E. A. Johnson and Catherine Hugent,\u201d\nThe propriety of instructing a jury in any civil action that it is their duty to enforce the law may well be doubted. Hamenwhacker v. Ferman, 152 Ill. 321,\nThe instruction under consideration taken as a whole, however, does no more than to advise the jury they are not free to consider the wisdom or propriety of the provisions of the statute, but the law as enacted by the General Assembly should be accepted and enforced in the case if the facts necessary to create liability under it, are proven by a preponderance of the evidence.\nThe error, if any there be, is not of reversible character.\nThe court gave sixteen instructions on behalf of the appellant, covering, as we think, fairly and fully the law of the case in that behalf.\nOther instructions asked by appellant and refused,- so far as they were proper, were but reiterations of those given.\nWe have carefully read the evidence and find it amply supports the judgment. Affirmed.", "type": "majority", "author": "Mr. Justice Boggs" } ], "attorneys": [ "Dariel Abbott, attorney for appellant.", "Walker & Lard alter, attorneys for appellees." ], "corrections": "", "head_matter": "John E. A. Johnson v. Ellen McCann, John McCann, Patrick McCann, Bessie McCann, Clara McCann, Jennie McCann and Leslie McCann, by Bridget McCann, Their Next Friend.\n1. Intoxicating Liquors\u2014Claim of Minor Children\u2014Rights of the Mother to Compromise.\u2014The right of action by minor children, under the statute, to recover for an injury to their means of support by reason of the sale of intoxicating liquors to their father, is wholly independent of the right given the wife by the statute and may be prosecuted by the children in their own names. The wife has no authority by reason of the relation of parent and child to compromise or adjust their claims for damages.\n2. Next Friend\u2014Power and Authority.\u2014The appointment of a next friend does not confer authority upon the appointee to compromise or settle the subject-matter of the litigation without an order of court directing or approving such compromise or settlement.\n3. Evidence\u2014When Improper is not Reversible Error.\u2014In an action by minor children under section 9, chapter 43, R. S., entitled \u201cDram Shops,\u201d it is error to admit against the objection of the defendant, evidence of the destitute condition of the children, and that neighbors furnished them with food and clothing to supply their wants, but is not sufficient to reverse the finding unless it appears that the defendant has been injured thereby.\n4. Practice\u2014Admission of Improper Evidence, When not Reversible Error.\u2014 It is error to admit upon the trial of an action under the dram shop act, evidence having no other effect than to arouse the sympathies of the jury in favor of the plaintiffs and direct their attention from the real issues and cause them to find damages not warranted by the facts, but as the defendant did not assign for error that the damages were excessive, the error was harmless.\n5. Instructions\u2014Directing the Jury as to its Duty.\u2014The propriety of instructing a jury in civil actions that it is their duty to enforce a law, may well be doubted.\nAction Under the Dram Shop Act.\u2014Appeal from the Circuit Court of Fulton County; the Hon. Jefferson Orr, Judge, presiding.\nHeard in this court at the May term, 1895.\nAffirmed.\nOpinion filed November 15, 1895.\nStatement oe the Case.\nBridget McCann, who alleged she had been injured in her means of support in consequence of the intoxication of Barney McCann, her husband, on August 10,1894, brought an action under the statute against the appellant and George Green, saloon keepers, and others as owners of the building in which the saloons were kept, to recover damages therefor.\nOn the 7th of December, 1894, Bridget accepted from said George Green the sum of $200 \u201c in full discharge of any and all damages to herself and each of her children alleged to have been caused to her or their means of support by the sale to said Barney McCann, her husband, of any intoxicating liquor by said George Green, his clerks or employes,\u201d and also in full discharge of all rights of action against the certain defendants who were sued jointly with Green and the appellant as owners of the building occupied by Green as a saloon. Written stipulations to the effect as above stated were executed by said Bridget and Green.\nAfterward at the December term, 1894, of the court, the cause was dismissed as to said Green and the others who had been made defendants as owners of the building occupied by him for saloon purposes.\nStill later leave was asked and given to make the minor children of said Barney McCann parties plaintiff to the proceeding.\nThe declaration was accordingly amended and the children brought in as plaintiffs, appearing by Bridget McCann as their next friend.\nIssue was joined and the cause submitted to a jury for hearing. During the hearing upon her motion the cause was discontinued as to said Bridget McCann, the declaration amended accordingly, and the cause prosecuted in behalf of the remaining plaintiff children of said Barnes, who obtained a verdict and judgment in their favor in the sum of $700.\nThis is an appeal therefrom.\nDariel Abbott, attorney for appellant.\nWalker & Lard alter, attorneys for appellees." }, "file_name": "0110-01", "first_page_order": 108, "last_page_order": 112 }