Majority
Headnote
What evidence authorizes a jury to find that a death, was caused by liqwr sold by the defendant—plaintiff is not required to prove that the intoxication was the immediate and proximate cause of his death — evidence of intoxication when lea/ving the saloon of the defendant is competent — exemplany damages.This action was brought under the statute known as the civil damage act. (Laws 1873, chap 646.) The plaintiff sought to recover for the injury which she claimed to have sustained to her means of support by the death of William McCarty. At the time of his death William McCarty was the husband of the plaintiff. On April 16, 1887, he was drowned. His death is alleged to have been caused by his intoxication. His intoxication is claimed to have been produced, in whole or in part, by intoxicating liquors sold or given him by the defendant.
On the trial it was proved that when the plaintiff’s husband returned from his work on the day of his death he was sober; that he went to the saloon kept by the defendant; that he was there thirty-five or forty minutes ; that while there he was seen to drink a glass full of whisky; that when he left the defendant’s place he was at least partially intoxicated. There was also proof of his drinking at other places during that evening, and that at ten o’clock in the evening he was very much intoxicated, so that he appeared unable to walk, and was in charge of two men who had hold of him, one on each side, and were encouraging him to try to walk. After this he was not seen by any of the witnesses until his body was found in a mill-race where he was drowned. The water at the
The defendant now contends that the evidence was insufficient to support the finding of the jury that the liquor furnished by the defendant to the decedent caused his intoxication, either in whole or in part, and that the court should have so held. There is no dispute but that the deceased purchased and drank at least one glass full of whisky at the defendant’s saloon on the evening before his death. Three witnesses testify that, very soon after*, he was so intoxicated that he staggered. The defendant called several witnesses, who saw him at about the same time, who testify that he was not intoxicated. Thus the question whether the liquor furnished by the defendant to the decedent caused his intoxication, • either in whole or in part, was one of fact to be determined by the jury, and the court properly declined to hold as a matter of law that the evidence was insufficient to establish that fact. That question was properly submitted to the jury, and the finding of the jury in the plaintiff’s favor .is fairly sustained by the evidence and should be upheld. (O’ Connor v. Conzen, 23 Weekly Dig., 533.)
The defendant also claims that the evidence was not sufficient to warrant the jury in finding that the death of the deceased was in consequence of his intoxication, and that the court erred in not so holding. We do not think this claim can be upheld. We think the evidence was sufficient to require the submission of that question to the jury, and to sustain their finding thereon. It is quite manifest that the intoxication of the plaintiff’s husband was the cause of his death. If he had been in possession of his natural faculties, it is extremely difficult to conceive how he could have fallen into this mill-race, or, if he had fallen in, how it was possible that he could have been drowned in water of that depth.
The defendant further claims that “ the plaintiff was bound to
On the trial witnesses were permitted, under the objection and exception of the defendant, to testify that the deceased was drunk when, or soon after, lie left the defendant’s saloon. The objection was upon the ground that it called for an opinion and Avas incompetent. We do 'not think the exception well taken. The ruling was proper. (People v. Eastwood, 14 N. Y., 562 .)
The defendant offered to prove by his own testimony that, when he received his license, the commissioners issuing it informed him that he could sell whisky under such license, and that he believed it. This was offered to show the defendant’s good faith. The evidence was objected to and excluded. This was not error. The appellant now contends that he was entitled to make the proof offered to avoid exemplary damages. This contention would have had more merit if the question of exemplary damages had been involved in the case. While the plaintiff was introducing her evidence she offered proof for the purpose of establishing a basis for
A careful examination of the evidence in this case, and of the questions raised by the appellant, has led us to the conclusion that the verdict was justified by the evidence; that there were no errors committed on the trial that call for a reversal of the judgment, and that the judgment and order appealed from should be affirmed.
Judgment and order affirmed, with costs.
Follett, J., concurred; Kennedy, J., not sitting.