116 N.Y. 450 | NY | 1889
Lead Opinion
The plaintiff is the widow of William T. Blatz, who committed suicide by hanging while in a condition of intoxication. The action is brought under the statute known as the "Civil Damage Act," and the plaintiff had a verdict at the circuit which was affirmed at the General Term.
The undisputed proof on the trial showed that Blatz spent the evening preceding his death in the defendant's saloon, and that while there he drank two or three glasses of beer. The court charged the jury that he drank intoxicating liquors that evening at defendant's saloon. The exception taken to this part of the charge raises the only question that it is necessary to discuss on this appeal, and we are called upon to decide whether the term "beer," in the absence of all evidence as to its quality and effect, imports an intoxicating beverage. "Beer" as it is ordinarily understood and as it is defined in the dictionary, is a "fermented liquor." It is made from malted grain with hops or from the extract of roots and other parts of various plants, as spruce, ginger, sassafras, etc. It is known under various names and designated as ale, porter, stout, strong beer, small beer, lager, spruce beer, etc. The courts take notice that many of the beverages sold under the name of beer are not intoxicating, while the stronger kinds as ale, porter and strong beer are of an intoxicating character. (Nevin v. Ladue, 3 Den. 437-450;Rau v. People,
For this error the judgment should be reversed and a new trial granted, with costs, to abide the event.
Dissenting Opinion
The complaint alleges a cause of action within the statute, which provides that a wife injured in her means of support, in consequence of the intoxication of any person, shall have a right of action against any person who, by selling or giving away intoxicating liquors, shall have caused the intoxication in whole or in part of such person. (Laws of 1873, chap. 646.) On the evening of March 3, 1885, the husband of the plaintiff, after having been at the saloon of the defendant, went to his place of residence, and there at some time during the night committed suicide by hanging himself. The plaintiff charges that such act of self-destruction of the husband was caused by his intoxication produced by intoxicating liquors obtained by him at the defendant's saloon, and that in consequence of such intoxication, the plaintiff was injured in her means of support. If those propositions were supported by the evidence, the conclusion that the plaintiff was entitled to recover was warranted. (Volans v.Owen,
This instruction by the court to the jury was founded upon the undisputed evidence that the husband drank two or three glasses of beer there at that time. The question raised by that exception is whether, without other evidence as to its quality or effect, it may be assumed that the term "beer," as a beverage, imports intoxicating liquor. It is well understood that all spirituous liquors are intoxicating, and that all intoxicating liquors are not spirituous. As commonly used, the term "spirituous liquors" does not embrace fermented liquors. The latter may or may not be strong and intoxicating. Some of it is and some of it is not so. (Nevin v. Ladue, 3 Denio, 437.) *458
The question whether the words "intoxicating liquors" embraced lager beer arose in Rau v. People (
There seems to us to be no further question presented by any exception for consideration on this review.
The judgment should be affirmed.
VANN, HAIGHT and PARKER, JJ., concur with BROWN, J.; FOLLETT, Ch. J., and POTTER, J., concur with BRADLEY, J.
Judgment reversed.