Oneida County NyArchives Court.....Ketcham, Mary Vs. Sarah Fox 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 11:08 am

Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

MARY KETCHAM, Respondent, v. SARAH FOX and GEORGE DICKERSON, Appellants.

Exemplary damages under the civil damage act — liability of the landlord 
therefor.

In an action, brought under the civil damage act, against the tenant and 
landlord of premises on which intoxicating liquors have been sold to the 
plaintiff's husband, the landlord, in the absence of any evidence to show that 
he had knowledge of the circumstances under which the liquor was sold to the 
husband, is not liable to pay exemplary damages.

Appeal from a judgment, entered in the office of the clerk of Oneida county 
March 27, 1888, upon a verdict rendered at the Oneida Circuit in March, 1888, in 
favor of the plaintiff for $1,125, and from an order denying a motion made upon 
the minutes of the court for a new trial.

The action was brought under the "civil damage act." The defendant Dickerson was 
the owner of a hotel at Rome, and the defendant Fox conducted it as his lessee 
from April 1, 1885, to December, 1886. The plaintiff claimed that the defendant 
Fox, or her agents, at divers times furnished intoxicating liquor to the 
plaintiff's husband, causing his intoxication, in consequence of which plaintiff 
was injured in her person and means of support. The defendants answered 
separately.

E. O. Worden, for the appellants.

J. P. Olney, for the respondent.

Merwin, J.:

The plaintiff, as part of her case, was allowed to prove, over the objection and 
exception of defendants, a conversation the plaintiff had with the husband of 
defendant Fox, some five years before the trial, about his selling liquor to 
plaintiff's husband. This was before the lease from Dickerson to Mrs. Fox, and 
was not at the hotel in question. It would seem to be clearly incompetent.

Edson Fox, the husband of Sarah Fox, being upon the stand as a witness for 
defendants, and having testified, among other things, that he carried on the 
business for his wife, the defendant Fox, during the time they occupied the 
hotel, from April 1, 1885, to December 1, 1886, stated that he had a 
conversation with Ketcham himself on the subject of his getting liquor there, 
and was then asked what the conversation was. This was objected to by the 
plaintiff generally, and the objection was sustained and defendants excepted. 
The witness was then asked: "Did you ever tell Ketcham that you would not sell 
him, or that he could not get any liquor there?" A general objection to this was 
sustained and defendants excepted. We think the defendants were entitled to this 
evidence, in view of the claim of the plaintiff that Mrs. Fox and her agents 
furnished liquor after being forbidden by the plaintiff. The question of 
exemplary damages was in the case, and the forbidding of sales was shown in view 
of that. The defendants had a right to show what they did on the same subject 
and to what extent they complied with the request of plaintiff. On the same 
subject the defendants offered to show special instructions given by defendant 
Fox and her husband with reference to Ketcham, to those who assisted them. This 
being objected to was ruled out and exception taken. This was admissible on the 
question of exemplary damages. The plaintiff claimed that Mrs. Fox or her agents 
persistently sold liquor to Ketcham after she and her husband were notified not 
to do so. Their motives and good faith were attacked as bearing on the damages, 
and they had a right to show what they did in relation to the same matter. These 
rulings were material as the case stood.

The court charged the jury that the defendant Dickerson was liable in the action 
to the same extent as the defendant Fox; that the right to exemplary damages in 
the case was based on the question of fact, which the jury might find, that 
Sarah Fox persistently continued to sell liquor to plaintiff's husband after she 
had notice that he was a pauper and an habitual drunkard, and had been forbidden 
to do so by the proper officials of the town.

These propositions were duly excepted to by the defendants. So that the question 
is whether the defendant Dickerson is liable for exemplary damages, upon a case 
being made that would warrant their recovery against the other defendant. The 
affirmative of this proposition was held by a divided court in Reid v. 
Terwilliger (42 Hun, 310). It was, however, held in this department in Rawlins 
v. Vidvard (34 Hun, 205), the action being against the landlord alone, that 
exemplary damages could not be awarded without proof of aggravating 
circumstances with which the defendant was connected. In that case it was shown 
that the defendant had knowledge that intoxicating liquors were to be sold, and 
circumstances were also shown sufficient to authorize the award of exemplary 
damages against the tenant. This was held not to be enough as against the 
landlord. It is a little difficult to see how the landlord should be any more 
liable, in case the action was against him and the tenant together than he would 
be in case the action was against him alone. The statute under which the action 
is brought makes him liable just as strongly in the one case as in the other, 
and no more so. So that substantially the Rawlins case is an authority adverse 
to the ruling in the Reid case.

It is now quite definitely settled by authority that exemplary damages are not 
recoverable in every case where a cause of action is made out, but that 
circumstances of abuse or aggravation must be shown. (See Rawlins case and cases 
cited.) This proposition seems to be recognized in Neu v. McKechnie (95 N. Y., 
632.) The statute, however, does not prescribe the rule to be followed in such 
cases, and, therefore, we must have reference to the law as it has been laid 
down in kindred cases. Generally speaking, exemplary damages are given to punish 
a willful wrong-doer, and by way of example to prevent similar wrong. In Mayne 
on Damages (Wood's ed.), section 769, it is said, with reference to an action 
for tort against several, that in no case could the malignant motive of one 
party be made a ground of damages against the other party who was altogether 
free from such improper motive; that, in such case, the plaintiff was bound to 
select the party against whom he meant to get aggravated damages, citing Clark 
v. Newsam (1 Ex., 140.) In Cleghorn v. New York Central and Hudson River 
Railroad Company (56 N. Y., 44), it is said by Chief Justice Church, that for 
injuries by the negligence of a servant while engaged in the business of the 
master, within the scope of his employment, the latter is liable for 
compensatory damages, but for such negligence, however gross or culpable, he is 
not liable to be punished in punitive damages, unless he is also chargeable with 
gross misconduct. So that if the tenant is to be deemed the agent of the 
landlord, the latter would not be liable for exemplary damages, unless in some 
way assenting to or responsible for the aggravating circumstances that furnish 
the occasion for such damages. In the present case the court, by the charge 
referred to, made the right to recover such damages to depend entirely on the 
act of the tenant. There is evidence in the case that the landlord had some 
knowledge of what was going on, but the right to recover exemplary damages was 
not made to depend on that. The jury were told that the landlord was liable to 
the same extent as the tenant, and that the right to exemplary damages depended 
on the view of the jury as to certain acts of the tenant alone. In view of the 
decision of this court in the Rawlins, case, that was not correct.

It follows that the judgment and order must be reversed and a new trial granted, 
costs to abide the event.

Hardin, P. J., and Martin, J., concurred.

Judgment and order reversed upon the exceptions and a new trial ordered, with 
costs to abide the event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/oneida/court/ketcham755gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 8.7 Kb