Temme v. Schmidt

60 A. 158, 210 Pa. 507, 1904 Pa. LEXIS 915

• Court: Supreme Court of Pennsylvania
• Decided: December 31, 1904
• Docket: Appeal, No. 110
• Status: Published

Opinions

Opinion by

Mb. Justice Potteb,

This action was brought in the court below to enforce in behalf of the plaintiff and her children the civil liability of the defendant for selling intoxicating liquor to Albert Temme, the husband of the plaintiff, a man of known intemperate habits. It is alleged that, by reason of the sale of the liquor to Albert Temme, and its use by him, he became intoxica.ted, and unable to care for himself, and ivas for a considerable period stupefied and delirious, and unduly neglected and exposed himself by reason thereof, so that in consequence he sickened and died. The question in the case was, whether the liquor sold and furnished by the defendant was the proximate cause of his death. At the close of the testimony offered by the plaintiff the trial court entered judgment of compulsory nonsuit, and the subsequent refusal of a motion to take it off is here assigned as error.

If the facts were not in dispute, and if the only inferences to be drawn from them were inconsistent with the claim of the plaintiff that the death of her husband was properly chargeable to the act of defendant in selling liquor to him, then the entry of the nonsuit was proper. But, if the evidence is fairly open to another construction, then the question of proximate cause should have been submitted to the jury, to be determined as a fact, in view of all the circumstances attending it. The question always is in such a case, was there an unbroken connection in the series of events between the wrongful act and the injury? An examination of the evidence shows that Albert Temme had for years indulged to excess in drink. That, when under the influence of liquor, he acted like a maniac. That about the first of December his wife notified the defendant not to sell her husband any more whisky, but the notice was not heeded. That whisky was sold to him both at the bar of the defendant and in bottles which he brought home and drank almost continuously, keeping himself in a state of prolonged debauch. That his conduct was such that his wife and children were compelled to leave the house on or about Monday, December 2. A son about fifteen years old stayed with him, attempting to care for him. He took this boy with him to defendant’s saloon on Tuesday night and drank liquor, and got a bottle and took it home with him, and when that was done, he went back and got another bottle, and, according to the testimony of the boy, kept it up in this manner all the week, and was drunk all that time, practically going without food, and subsisting only upon whisky. On the next Sunday a physician was called in, who testified that he found on Albert Tennne symptoms of delirium tremens, and that he was suffering from alcoholism and the results of exposure. He ordered him taken to the hospital, which was done the same evening. The physician at the hospital testified that when he first saw him there, some four days afterwards, he was in a cell in the alcoholic ward, and that he was then delirious, presumably (he says) from alcoholism. It also appeared that he escaped from the hospital for a short time and wandered around in December weather, without stockings or sufficient clothing, and that he was recaptured and taken back to the hospital. A gangrenous condition developed in his feet, and he died on December 15.. Doctor McGrew, who examined him at his house and found no indication of gangrene at that time, gave it as his opinion that the gangrene which developed at the hospital was probably caused by alcoholism and exposure. In his judgment alcoholism alone would produce gangrene, and, quoting his own language, he said: “ I suppose the exposure would help it along. Certainly the man should have been confined to bed and had good attention from the first. That was my idea in sending him to the hospital. The fact of the matter was, that he would have died if the man went on the way that he was doing; he did n’t have any chance at all. That is the reason I advised him to be sent to the hospital, and I suppose his delirium continued there as he escaped from there. In fact the man should have been confined to bed in a straight-jacket and kept in bed some how or another.”

Now here was a succession of facts and circumstances beginning with the sale of liquor by the defendant to Albert Temme and extending to the time of his death, some two weeks later. Was there any intermediate cause not attributable to the original wrong, which brought about the death? Or was the succession of events so linked together as to constitute a natural whole ?

This court said in Davies v. McKnight, 146 Pa. 610: “ It is not easjr, in a case of this kind, to trace with absolute certainty the death to its proximate cause. But the liquor was undoubtedly the proximate cause of his falling into the gutter and the consequent exposure, and it was for the jury to find whether the attack of pneumonia was the result of the exposure ; in other words, a continuous causation from the furnishing of the liquor.” And in Brashear v. Traction Co. 180 Pa. 392: Where an injury to a woman resulted in premature childbirth followed by tetanus which caused her death, and the medical testimony agreed that, while tetanus resulting from childbirth is comparatively rare, there is a distinct relation between it and childbirth, especially miscarriage, and it is one of the natural and probable consequences to be apprehended, and there was no evidence that would have justified the court in saying that there was an intervening independent cause, the question of proximate cause, was held to be for the jury. Our Brother Fell said (p. 396) : “ The causal connection was shown and the continuity of effect was traced through the succession of events. No other cause of death was assigned. True, it was shown that the disease was caused by specific infection, but by the same witnesses it was shown that the miscarriage made the deceased especially liable to infection.” And again in McCafferty v. Penna. R. R. Co., 193 Pa. 339, we said (p. 344) : “ The connection between the accident and the death was not clearly established. The deceased was injured by the derailment of the car in which he was riding on April 1, 1896. He lived until April 12, 1897, and the immediate cause of his death was an abscess on the liver. A month before he died he had a severe attack of grippe. It was incumbent on the plaintiff to show with reasonable certainty that the abscess was caused by the injury received. This was difficult to do, as the disease is one whose origin is difficult to trace. The medical testimony produced by the plaintiff was in itself far from convincing, but it was fortified by proof that her son had never recovered from the effect of his injuries, and that they were apparently internal and indicated a serious derangement of the liver before he had the grippe. We are not prepared to say that the court should have instructed the jury that the testimony did not warrant the conclusion that the death was the natural and proximate consequence of the accident. The q uestion, however, is one which should be submitted with most careful instructions.”

In the present case, there is testimony upon the part of the plaintiff, which if believed by the jury, is sufficient to warrant a finding that the liquor sold by the defendant to the decedent was the proximate cause of the attack of alcoholism, and the delirium and exposure which accompanied it.. There was medical testimony to the effect that gangrene might follow as the result of alcoholism alone, although exposure would increase the liability. But it was for the jury to find whether the attack of gangrene was the result of the alcoholism and the exposure induced by it, or whether the gangrene was a separate and sufficient independent intervening cause of the death. We think that the inferences to be drawn from the facts disclosed by tbe testimony were not so clear as to justify the court in taking from the jury the determination of the proximate cause of the death.

The first assignment of error is sustained.

The judgment is reversed and a procedendo awarded.