that this evidence had a material effect upon ages awarded are unusually large for this the answers made. jurisdiction, but, if the jury found these Another objection which might have been facts proven-and they reasonably might taken to this evidence was that the action | have done so we cannot hold the damages was one of negligence, to be resolved by the awarded to be excessive. acts done by Matri, and not by proof of his violent temper or other mental characteristics. So far as the present record discloses, we think its exclusion, if objected to upon that ground would have been proper. Carlson v. Conn. Co., 95 Conn. 725, 112 Atl. 646. [15] 10. Matri testified as to firing two shots from his rifle in the air and a third shot aimed low at the automobile, and as to where he was when he fired these shots. For the purpose of corroborating Matri's statement, defendant inquired of its witness Burnap as to finding certain empty shells at the reservoir shortly after plaintiff was shot. It appeared in evidence that the shells found were of the same caliber as those used in the rifle by Matri that night, and that the rifle was a magazine rifle from which each used shell was ejected. This evidence was excluded. It ought to have been admitted, as it did tend to corroborate Matri's statement. Commonwealth v. Watson, 109 Mass. 354, 355. [16] Burnap testified as to where Matri said he was when he fired these two shots. Matri's statement was objected to and excluded. The ruling was correct. Matri's statement, made through Burnap, was hear say. 11. Other exceptions to rulings made in reference to evidence offered to prove that the duty the city was performing was a governmental one becomes of no importance in view of our holding that this question did not arise in the case. [17] The defendant moves to set aside the verdict because the damages awarded are excessive. The jury might have found that the plaintiff was vigorous and in sound health, and in consequence of the injuries she suffered became a helpless invalid for life; that her left limb was amputated just below the left thigh in order to save her life; that she suffered greatly from gunshot gangrene and erysipelas; that she has suffered much pain constantly since the injury, and will always suffer pain, and can expect little physical improvement; that her nerves have been shattered, and she has never recovered from the shock of the injury, and has lost her sense of smell; that she is and will be unable to have the use of her limb, even with the aid of artificial means; that she was 41 years of age when injured, having an expectation of life of 271⁄2 years; that she was earning $40 per week at her occupation, and that she will never hereafter be able to work at her employment; and that she has been under the constant care of physicians since her injury, and has expended in the [18, 19] The subject-matter of the motion for new trial-the improper conduct of counsel during the trial, and the improper statements in the argument-should have been included in the appeal. The remedy by way of a new trial is limited to the specified statutory grounds. General Statutes 1918, §§ 5840, 5850. The court incorporated a part of the subject-matter of the motion in its finding. As to paragraphs 17 and 18 of defendants' proposed finding, which corresponded to paragraphs 9 and 10 of the motion for new trial, it made a specific finding. As to the other paragraphs of the motion for new trial made a part of defendants' proposed finding, it made no finding, but incorporated in its finding the testimony taken on the hearing on the motion for new trial relating to these paragraphs. The superior court should have found the facts as to this matter. This court cannot find the facts. [20] Counsel for defendants moved to correct the finding, and filed exceptions as to paragraphs 17, 18, and 19 of defendants' proposed finding. This motion the court denied. As to the statements made by Mr. Lewis and that made by Mr. Cassidy in reference to Mr. Brown, as found in said paragraphs 17 and 18, which we think it unnecessary to quote, the court has found that no objection or exception was taken by defendants to the same prior to their motion for a new trial. Of its own motion the court interrupted Mr. Cassidy's argument and cautioned him, and thereupon he proceeded to another subject. The objections to these statements come too late. This situation does not present such an abuse of an attorney's privilege as to justify our disregarding our general rule. "A party who has full knowledge of improper conduct by his adversary's attorney cannot remain silent and speculate on the chances of a favorable verdict, and afterward be heard to complain when the verdict is unsatisfactory." James v. Bowen, 83 Conn. 707, 78 118, 81 Atl. 969; State v. Laudano, 74 Conn. Atl. 420; McKiernan v. Lehmaier, 85 Conn. 645, 51 Atl. 860; State v. Tuller, 34 Conn. 294. As to the rest of the motion to correct, it was properly denied, and the exceptions concerning the same are not well taken. There is no merit in the motion in arrest. There is error on the appeal, and a new trial is ordered. BEACH, GAGER, and CURTIS, JJ., concur. BURPEE, J. (dissenting). The plaintiff (115 A.) qualified by training and knowledge to handle a dangerous weapon properly. The exclusion of the testimony of the witness Burnap as to finding some empty cartridge shells on the reservoir shortly after the plaintiff was wounded appears to me to have been justifiable and harmless. In the first place, I think the record shows that Matri had not testified definitely where he was when he fired each of the shots. He had said that he fired three shots while he was walking from near the center of the dam toward the approaching automobile; one when it was 150 feet from the dam, one when it was 50 feet from the dam, and the third when it was on the dam. He thus fixed the locality of the automobile, but not precisely where he was, when he fired any of the three shots. This testimony was brought in by the plaintiff in Matri's direct examination, was repeated and confirmed in his cross-examination at the suggestion of the defendant, and was undisputed. In such a state of this testimony, it hardly seems that any corroboration by the defendant was necessary or profitable. But corroboration was the only purpose for which it was claimed. shot which wounded the plaintiff, "was not a man qualified or fit to be armed with a dangerous weapon, and to act as guard at the reservoir." This allegation the defendant denied. Upon this issue the defendant produced testimony by Matri that he had had some training in the use of firearms, and knew how to handle them properly. Thereafter the plaintiff offered the testimony of McNamara for the purpose of showing, as stated in the opinion of the majority of this . court, that Matri was "unfit to act as a guard"; or, as stated by counsel who presented the testimony, to show "his qualification as a guard." I think this testimony was admissible for such purposes. Whatever bearing it might or might not have upon the general character of Matri, or upon any single trait of his character, it seems to me it had a direct and very forcible bearing upon the important matter in question. It tended to show that he had not had the training he claimed to have had, or that, in spite of any training he had had, Matri did not then know how to handle a dangerous weapon properly, and that lack of training and knowledge made him unfit or unqualified for the duty the defendant had employed him to perform. In the opinion of the majority, McNamara's testimony is said to be "a species of character evidence." It seems to me that it should not be restricted as character evidence. Matri's mental qualified that the first shot was the one that took fications, disposition, temper, and judgment may have been unquestionable, and yet, if he did not know and practice the proper use of firearms, he was unfit and unqualified to act as guard armed with a loaded rifle. His fitness and qualifications of that kind were in dispute, and it is conceded that McNamara's testimony was introduced for the purpose of showing that Matri was unfit and unqualified in that respect. But I think it was quite immaterial where Matri stood when he fired any of the shots which all the witnesses agreed that he fired. The plaintiff and two other witnesses testi effect, and that the others were fired while the automobile was going away from the dam. On the other hand, Matri claimed that the first two shots were warning shots, fired in the air, and only the third shot was aimed toward the automobile. The plaintiff's testimony was intended to show that Matri was reckless or negligent; Matri's testimony was calculated to prove that he was cautious and reasonable. In considerMatri's conduct would indicate convincing- ing these conflicting claims, it does not aply whether he had the training, knowledge, pear that the jury could get any help from and practice to fit him "to act as a guard," knowing exactly where Matri was when he armed as he was by the defendant. That fired any shot. It was admitted that he was conduct, of course, must be judged in view of on the dam when he saw the automobile apthe circumstances. The record discloses that proaching from about 150 feet from the dam, McNamara was inoffensive, and had given and that, while walking toward the apno cause for suspicion. He had promptly proaching automobile, he fired all three obeyed Matri's order to stop his automobile, shots within that short range. What the had answered Matri's questions civilly and jury should have been concerned in decidreasonably, and was trying to turn his car to ing was which of these shots was the aimed go away from the reservoir. Then Matri ad- shot; that is, whether in fact Matri fired vanced closer, raised his loaded gun to his first two warning shots. His precise locashoulder, and pointed it at McNamara, with tion within the limits and circumstances he the muzzle within four or five feet of his had explained were entirely insignificant. face, and, holding the weapon in that position Moreover, the record shows that the rifle some minutes, declared that he had a mind Matri was carrying was one from which to blow out the brains of this unarmed and each used shell was ejected by pulling down peaceable citizen. It seems to me that was a lever; but the record does not contain any the conduct of a man who was "unfit to act evidence tending to show that Matri extractas a guard" anywhere, at any time, and that, ed each shell on the spot where he fired each no matter what Matri's character or dispo-shot, or that he did not walk some distance It seems to and malt liquors, and defendants appeal. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, KEPHART, SADLER, and SCHAFFER, JJ. ty shell and reloaded his gun. me that the material matter in question was not exactly or approximately where Matri stood when he fired any of the three shots, but which one of the shots he aimed toward the automobile, and that to this matter the offered testimony was irrelevant and im- E. C. Higbee, of Uniontown, for appelmaterial, and its exclusion harmless. And lants Vigliotti, cited: Ruppert v. Caffey, 251 it seems the more so because Matri's state- U. S. 264, 40 Sup. Ct. 141, 64 L. Ed. 260; ments concerning his locality were admit- Purity Extract Co. v. Lynch, 226 U. S. 192, ted to be true, and any attempt to corroborato them, even if it were practicable and desirable to do so, would be superfluous. I do not disagree with any statement of law contained in the opinion of the majority of this court, but I am constrained to dissent from its application to the conditions of this case. I do not think the rulings of the trial court which are found erroneous fall within the limits of the law defined in their opinion. For the reasons I have already stated, those rulings appear to me to be justifiable or harmless, and therefore to give no cause for a new trial. 33 Sup. Ct. 44, 57 L. Ed. 184; Rhode Island v. Palmer, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. 946; Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182; In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572; State v. Green, 148 La. 376, 86 South. 919; Com. v. Nickerson, 236 Mass. 281, 128 N. E. 273, 10 A. L. R. 1568; State ex rel. v. District Court, 58 Mont. 684, 194 Pac. 308; State v. Fore, 180 N. C. 744, 105 S. E. 334; People v. Foley, 113 Misc Rep. 244, 184 N. Y. Supp. 270; Allen v. Com. (Va.) 105 S. E. 589; Jones v. Hicks, 150 Ga. 657, 104 S. E. 771, 11 A. L. R. 1315; Allen v. Com. (Va.) 105 S. E. 589; Breslin's Case, (N. Y.) 210. A. E. Jones, of Uniontown (Carr & Carr and Brownfield, Goodstein & McDaniels, all of Uniontown, on the brief), for other appellants, cited: State ex rel. v. Donahey, 100 Ohio St. 104, 125 N. E. 908; State v. Tonks, 15 R. I. 385, 5 Atl. 636; Draper v. State, 6 Ga. App. William A. Miller, Dist. Atty., of Uniontown, and N. W. Rosenberg, Asst. Dist. Atty., of Uniontown, for the Commonwealth. MOSCHZISKER, C. J. The several defendants at bar were convicted at a time subsequent to the date of the Eighteenth Amendment to the Constitution of the United States and after the act of Congress was passed for its enforcement. The question involved is: Do these federal laws annul the state law under which defendants were indicted for selling liquor without a license? I. Intoxicating liquors 13-State law regu-12, 64 S. E. 117; Steffy v. Town of Monroe, lating and restraining sale of intoxicating 135 Ind. 466, 35 N. E. 121, 41 Am. St. Rep. liquors not abrogated by Eighteenth Amend- 436. ment or by congressional act enforcing same. As the Brooks Law of May 13, 1887, restraining and regulating the sale of spirituous, vinous, and malt liquors, though tacitly recognizing the right to sell such liquors, prescribed a licensing system, extending to liquors not intoxicating, it must, in view of the contemporaneous submission of the question of prohibition, be deemed that the Legislature passed such act in contemplation of the possibility of prohibition, so such act was not repealed by Const. U. S. Amend. 18, forbidding the manufacture, sale, or transportation of intoxicating liquors, and declaring that Congress and the several states shall have concurrent power to enforce the article, or the congressional act [1] The Pennsylvania act of May 13, 1887 for enforcement, for the constitutional amend- (P. L. 108), called the Brooks Law, is enment did not destroy the police power of the titled "An act to restrain and regulate the state which was exercised by the Brooks Law.sale of vinous and spirituous, malt or brewed 2. Criminal law 304 (1)—Courts will take liquors, or any admixtures thereof." Any judicial notice that prohibitory laws must liquor containing distilled alcohol is spiritbe enforced. uous; all having alcohol as a result of fermentation are vinous; and those with alcohol produced by artificial processes, such as the brewing of beer, come within the malt or brewed class. These, together, are generally supposed to include practically all kinds of The courts will take judicial notice that prohibitory laws do not destroy the appetite of mankind for intoxicants, and that means of enforcemert must be devised. Appeal from Superior Court; John B. Head, beverages containing even a trace of alcoJudge. hol. Tony Vigliotti and others were convicted The Brooks Law has 19 sections, and neiof violating the Brooks Act, restraining and ther the term "intoxicating liquors" nor its regulating the sale of vinous, spirituous, equivalent is found in any of them till we (115 A.) reach the fourth which makes it the duty of [control, and, through such control, actual constables to return all places, "licensed and enforcement of practical prohibition. In unlicensed," that are "engaged in selling in- this connection, witness the series of amendtoxicating liquors." Then the sixteenth ments made to the Brooks Law by our last section renders it unnecessary for druggists Legislature, which still retain the license to obtain a license under the statute, but plan. provides: When looked at from the standpoint we have indicated, there is nothing in the Penn"They shall not sell intoxicating liquors except upon the written prescription of a regu-sylvania act so inconsistent with the Eightlarly registered physician," and "any person eenth Amendment to the Constitution of the who shall willfully prescribe any intoxicating United States, which reads thus: liquors as a beverage to persons of known intemperate habits shall be guilty of a misdemeanor." "Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all for beverage purposes is hereby prohibited. "Sec. 2. The Congress and several states shall have concurrent power to enforce this article by appropriate legislation" These provisions, together with a prohibition, in the seventeenth section, against sell-territory subject to the jurisdiction thereof ing to persons visibly affected by "intoxicating drink," are absolutely the only references in the statute to "intoxicating liquors," and it will be observed that none of them have to do with defining the kinds of liquors compre hended by the licenses which this legislation or to the act of Congress passed October requires. In fact, we early decided that the 28, 1919 (41 Stat. 305), called the Volstead liquors referred to in the licensing parts of Act (which prohibits liquors for beverage purthe act of 1887 need not have an "intoxicat-poses that contain one-half of 1 per cent. of ing quality." See Com. v. Reyburg, 122 Pa. alcohol or more), as to require us to hold our 299, 304, 16 Atl. 351, 2 L. R. A. 415. The sale of such liquors was permitted under the Brooks Law, because, and simply because, not forbidden, although there can be no doubt it was intended to be permitted to the limited extent there tacitly allowed. The statute in question was put upon the books at a time when strict prohibition was being agitated in the state, the same Legislature which passed it formulating a constitutional amendment to that end for submission to the people (1887, P. L. 414); and it may well be the thought was in the minds of the lawmakers that not only did this piece of legislation (the Brooks Law) serve the then present purposes, but it would fit the situation till a better instrument could be · devised in the event of prohibition coming to pass. At least this suggestion is warranted, not only by the significant absence from the act of the term "intoxicating liquors," in connection with the license system there ordained (such term or an equivalent being rather generally used in the earlier Pennsylvania liquor laws), but also by the whole structure of the statute; for it is so drawn that, by the elimination, through subsequent legislation or otherwise, of the possibility of intoxicating liquors being sold thereunder, its terms would admirably suit the control of the business of dealing in those kinds of liquors which most readily may become of the intoxicating class or those liquors under the guise of which intoxicating beverages can be most easily trafficked in. This course —that is, a well-regulated license system, to govern the general supply and distribution of all liquors of the character just describedin the view of many thoughtful people is considered one of the very best aids to efficient statute annulled by the federal law. The police power of the sovereign commonwealth of Pennsylvania remains unimpaired, so far as the right to protect its citizens, in its own way, from the evil effects of intoxicating liquors is concerned, except, of course, that since the Eighteenth Amendment under no statute may it permit the sale, use, or possession of liquors of a kind or in a manner prohibited by the federal law. Aside from these limitations, all our acts of assembly stand which are not inconsistent with the amendment and cognate federal statutes, and, as already stated, the act of 1887 cannot be thus classed; any of its provisions in conflict with the federal law are annulled; but, as the prevailing scheme of the statute and the parts thereof under which the indictments at bar were drawn are not so in conflict, the act was properly held to be in force for present purposes. The nearest analogy within our own law on the point of concurrent exercise of the police power which at all approximates the situation presented by the new national law and the previously enacted laws of the several states, so far as the effect of the former upon the latter is concerned, is that shown by the early regulations governing automobiles upon the highways of this state at a time when local jurisdiction in that field was very generally permitted by the commonwealth to its several political subdivisions. In Brazier v. Phila., 215 Pa. 297, 300, 301, 64 Atl. 508, 509 (7 Ann. Cas. 548), while conceding the "paramount authority of the lawmaking power of the state" over that of any one of its cities-just as here since the Eighteenth Amendment, on the subject there dealt with, like paramount authority must be con ceded to the national government over any (take judicial notice since the normal appeone of the states-speaking of the effect on a tite for vinous, spirituous, malt, and brewed local automobile regulatory ordinance of a liquors of an intoxicating nature still consubsequently enacted general law providing tinues, and, so far as we can see will continue "state regulations for use of automobiles," we to continue for some time to come, and since held that, notwithstanding the enactment of those beverages, whether intoxicating or not, the general law by the paramount authority, very largely constitute the drink of the the ordinance stood intact, since the latter people, it is obvious that a statute such as was "not inconsistent" with the former and the Pennsylvania Acts of 1887, requiring all was "adapted" to carry out its purpose. On dealers in the kinds of liquors just named to the same theory, but, as this is a sovereign be licensed, and strictly regulating the trade state, with stronger grounds of support, we therein, by thus making it possible to keep a conclude that the Brooks Law still survives close watch over the character of men who as Pennsylvania's own police power method are given a license, and over their conduct of officially listing and adequately controlling after the privilege is granted, is capable of the customary sources of general supply and serving a useful purpose in preventing the distribution to the peoples within her bor illicit distribution to the people of intoxicatders of those kinds of liquors among which ing drinks by those in control of the usual intoxicating beverages are usually found, and source of beverage supply. To this extent, she may thus assist in prohibiting their il- at least, it is adapted to present conditions, legal use as such. Although, of course, not and therefore not in conflict with the new intended for that specific purpose, the stat- laws which brought about those conditions. ute is adapted to serve as an instrument with which to perform, at least in part, this state's right and obligation to enforce "by appropriate legislation," the Eighteenth Amendment. The Pennsylvania plan may prove entirely adequate to the occasion, or, as some predict, it may prove practically inadequate, but these are matters of fact with which we have naught to do. Of its legal sufficiency, as a piece of subsisting legislation, which is neither inconsistent with nor antagonistic to the recently ordained federal law, this court, for the reasons already given, entertains no doubt, and that is all we are charged to pass upon. If the Brooks Law had been written for the express or prime purpose of deriving revenue from licensing the sale and regulating and encouraging the use of intoxicating liquors, as appellants seem to think, and all the numerous features therein of a strictly prohibitory nature, of which there are many, Many decisions relating to the general subwere subordinate to what they take to be its ject in hand have been cited to us by counsel real purpose, then it might well be said there on both sides. Some of these from other was such incompatibility between it and the states uphold their existing liquor laws, Eighteenth Amendment that the two could while others decide to the contrary (the cases not stand together; but, as we have shown, in question, together with the relevant United this is not the case. On the contrary, while States Supreme Court decisions, will be menthe Brooks Law recognizes the existence of tioned by the reporter in his notes published intoxicating liquors, and, by not forbidding, in connection herewith); but, since this tacitly permits, their sale and use, its whole court views the matter from a somewhat diftenor is one of restraint against the recog-ferent angle than that taken by the courts nized evils which flow therefrom, and, as of the other states, under their respective acts · previously said, so far as the licensing fea tures of the act are concerned, the scheme of the statute is to regulate the direct distribution to the people, not of intoxicating liquors, but of those kinds of liquors among which the former is usually found, and thus to control such distribution for the enforcement of laws regulating the actual use of intoxicating liquors, no matter what those laws may prove to be from time to time. of assembly, which, perhaps, radically differ from our own, we think no useful purpose would be served by discussion of these outside decisions; nor, from our point of view, is it necessary to discuss further appellant's contentions against the positions taken by the Superior Court of this state in deciding the present controversies. It is sufficient to say that we find no error in the ultimate conclusions of that tribunal, represented by its determination of the several cases now before us for review. [2] If man were so constituted that legally ordained prohibition would, in and of itself, universally restrain his appetite for strong The judgments appealed from are affirmed, drink, after the Eighteenth Amendment, no and it is directed that the orders of the Susuch regulation would seem necessary, but, perior Court contained in its affirmance of unfortunately, he is not, and of this fact we these judgments be forthwith complied with.. |