
    Ketchum v. Fox et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    May, 1889.)
    1. Intoxicating Liquors—Civil Damage Laws—Evidence.
    In an action against lessor and lessee, under the “civil damage act, ” for injuries' to plaintiff by the sale of intoxicating liquor to her husband by the lessee, evidence of a conversation, concerning the sale of liquor to plaintiff’s husband, between plaintiff and the lessee’s husband, five years before trial, and before the lease, and not at the leased premises, is incompetent.
    2. Same—Exemplary Damages—Evidence.'
    Where plaintiff alleged and gave evidence, on the question of exemplary damages, that the lessee sold liquor to plaintiff’s husband after being forbidden to do so, the lessee’s husband, who conducted his wife’s business, should be allowed to testify to a conversation with plaintiff’s husband on the question of his getting liquor there, and to state whether he told plaintiff’s husband that he could not get liquor there, and defendants should be allowed to show special instructions given by the lessee and her husband to their servants with reference to plaintiff’s husband.
    3. Same—Landlord and Tenant—Exemplary Damages.
    In order to charge the lessor with exemplary damages, a case therefor must be made against him individually, and it is not enough that such a case is made against the lessee. It is therefore error to charge that the lessor is liable to the same extent as the lessee, and that the right to exemplary damages is based on the question whether the tenant continued to sell liquor to plaintiff’s husband after being forbidden to do so, and after notice that he was a pauper and habitual drunkard. , Overruling Reid v. Terw illiger, 42 Hun, 310.
    Appeal from circuit court, Oneida county.
    Action by Mary Ketchum against Sarah Fox and George Dickerson, under the civil damage act. Dickerson was the owner of a hotel, and defendant Fox conducted it as his lessee from April 1, 1885, to December, 1886. Plaintiff alleged that 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. Verdict for plaintiff. Motion on the minutes for new trial denied, and defendants appeal.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      E. 0. Worden, for appellants. J. P. Olney, for respondent.
   Merwin, J.

The plaintiff, as part of her case, was allowed to prove, over the objection and exception of defendants, a cdnversation 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 Ketchum 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 Ketchum that you would not sell him or that he could not get any liquor there V” 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 Ketchum, to those who assisted them. This, being objected to, was ruled out, and exception taken. This was admissible on the question of exemplar}7 damages. The plaintiff claimed that Mrs. Fox or her agents persistently sold liquor to Ketchum 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 ease 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 hé 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 ease 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, Dam. (Wood’s Ed.) § 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 Exch. 140. In Cleghorn v. Railroad Co., 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 ease 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. All concur.  