67 W. Va. 4 | W. Va. | 1910
The plaintiff, by the verdict of a jury, recovered a judgment against the defendant, for the sum of three hundred dollars, upon the ground that defendant had caused loss to her means of support by the unlawful sale of intoxicating liquors to her minor son.
The first assignment of error calls into question the sufficiency of the declaration, the demurrer to which was overruled. We find the declaration sufficient. It is not subject to the fault alleged — that it does not state the cause of action in a way that affords the defendant a fair opportunity to make a full and complete defense. It is certain to a common intent.
The court refused to ask the jurors, when they were examined
SeVeral instructions to the jury were given at the request of plaintiff over the objection of defendant. We shall briefly observe those that appear to be improper. It is complained that the first one asserts facts as in evidence without the usual qualification “if the jury believe from the evidence.” So it does. It says that the plaintiff is the mother of Fred Carpenter, the boy to whom it is alleged the liquor was sold; that he is a minor; and that his mother depended in part upon him for support. But there is no conflict in the evidence as to any of these facts They are absolutely- uncontradicted. Since there is no conflicting evidence as to these facts, there is no error in stating them to the jury without qualification. “An instruction based upon an admitted fact or upon facts not disputed is not erroneous merely because it fails to contain the words, “if you believe from the evidence.” 11 Enc. PI. and Pr., 185. The instruction soundly states the law. By it the jury were properly told that if the plaintiff had been injured in her means of support by the intoxication of her son, caused in whole or in part by liquors unlawfully sold to him by the defendant, she has a right of action against the defendant, although at the time-of such injury she was living with her husband on whom she depended in part for support. McMaster v. Dyer, 44 W. Va. 644.
The second instruction is faulty in one particular. It submits to the jury whether they shall believe plaintiff has been injured in person as well as in means of support. Yet there is not a word of evjdence supporting the fact of injury to her person by reason of the alleged acts of defendant in selling liquors to her son. In a ease similar to this one, decided at this term, Pennington v. Gillaspie, the giving of an instruction which referred to injury to plaintiff’s person when there was no evidence of such injury was held to be error. It is improper to submit to a jury by an instruction any proposition turning on evidence when there is no evidence of any kind in;
Another instruction told the jury that, if they believed from the evidence a particular state of facts, they should find for the plaintiff and assess compensatory and exemplary damages. The state of facts necessary to a finding for plaintiff submitted in the instruction is unobjectionable; but the instruction is' clearly erroneous in virtually directing the jury to find exemplary damages if they should believe that state of facts. The jury may find exemplary damages in addition to those of a compensatory character. But the court cannot properly tell them that they should find exemplary damages. Whether damages of this kind shall be found must be left to the discretion of the jury. It is true that an instruction in practically the same language was approved in McMaster v. Dyer, supra. But it was inadvertently approved. The point now under consideration was not raised in that case. Recently, the question has received mature consideration by this Court. “An instruction binding the jury to give exemplary damages is erroneous.” Fink v. Thomas, 66 W. Va. 487 (66 S. E. 650). “If the plaintiff be entitled to actual damages the jury may be told in an instruction that they may also award exemplary damages; but it is error to tell them that they should award exemplary damages.” Pennington v. Gillaspie, supra.
In view of the conclusion that we must announce, it is unnecessary to pass upon the refusal of the court to set aside the verdict for the admission of new evidence, claimed to have been discovered after the trial. Nor shall we advert to the alleged insufficiency of the evidence to support the. verdict, except to suggest that it is questionable whether any substantial basis is afforded by which the jury could find an amount of actual damages for loss of means of support. The evidence must afford data, facts and circumstances, reasonably certain, from which the jury may find the actual loss. Hurxthal v. Boom
The judgment will be reversed, the verdict set aside, and a new trial awarded.
Reversed and new trial awarded.