Rosecrants v. Shoemaker

Campbell, C. J.

Plaintiff sued defendants for furnishing intoxicating liquor to her husband, who, as she claimed, was killed, while intoxicated, by a train of cars. Among other matters, proof was given tending to show that plaintiff authorized defendánts to furnish him liquor,' and procured it for him herself. There was a conflict on this. There was also testimony before the jury, given by plaintiff, that when her husband was killed she was keeping house with her husband, and had four children of different ages; the oldest being 16, and the rest younger.

Several errors were assigned, but on the argument there were three especially relied on, the others not being argued.

The court was asked to charge, “ if the jury find that defendants were authorized by plaintiff to furnish her husband liquors, she cannot recover damages for injuries sustained by reason of defendants having furnished her husband liquor, unless he was intoxicatéd when such liquors were furnished.” This request was absolutely refused. The court also refused the following request; stating that it was refused, except as given in the general charge. In the general charge the court stated that plaintiff denied having purchased any liquor, and insisted she had forbidden defendants to let him have it, making no reference whatever to the contrary testimony, and saying nothing as to its effect. The request was : “ If the jury find that, for her husband’s use, as a beverage, the plaintiff was in the habit of purchasing of defendants intoxicating liquors by the bottle,, they may consider that as evidence for the purpose of determining whether she authorized him to sell her husband liquor or not.” In the general charge, the jury were authorized to find both actual and exemplary damages if the defendants furnished him *7 liquors which contributed to his intoxication, without confining them (although the court probably meant to do so) to the case of willful wrong, or giving any other caution upon it.

Under the statute of 1883, p. 215, it is expressly declared-that whatever damages are recovered by a wife or child shall be the plaintiffs sole and^eparate property, and every person injured shall have a right of action in his or her own name. As the wife sues solely in her own behalf, it is evident that she cannot complain of any evil which she hasherself caused, and that, if she encouraged or requested the sale of liquor to her husband, she does not stand on the footing of an innocent injured party. The request seems to have assumed that, if the husband was drunk when defendants furnished him liquor, the action might be for damages, and upon this we need not dwell. But the charge, as requested, was correct; and the jury certainly should have been allowed to consider the habitual purchase by plaintiff as bearing on her willingness to let her husband have liquor.

The court should also have told the jury that they should not consider the fact that she had children, for the purpose of increasing the damages. If the mother sued for all the family she could recover full compensation for their loss. But as each child could sue and recover separate damages, this ought to have been explained to the jury, who, it is probable from the record, gave larger damages than any one person would have recovered.

The judgment should be reversed, and anew trial granted.

The other Justices concurred.