105 Mich. 679 | Mich. | 1895
This is an action brought under the civil damage law against defendant, who was during the years 1888, 1889, 1890, 1891, and 1892 engaged in keeping a saloon in the village of Tecumseh. The plaintiff sued to recover damages for injury sustained in her means of support and injury to feelings. She recovered a verdict of $1,500, upon which judgment was entered; and the defendant brings error, alleging a large number of errors committed on the trial.
. “If the plaintiff’s husband, at the time the defendant first sold him liquor (if he ever did sell him any), was a confirmed drunkard, in that case the defendant would not be liable for causing or contributing to such condition, but would only be liable for such damages as the plaintiff sustained, so far as actual damages are concerned, by reason of selling to him in that condition.”
Anri, in another request, as follows:
*682 “If you come to the question of damages, then, in considering that question, you must take the husband of plaintiff just as you find him by the testimony at the time the defendant first sold him liquor (if he ever did sell to him), and must consider that question in the light of his then condition; and, if you find him at that time a confirmed drunkard, then you can assess damages only for selling to such a man, and not to a sober and industrious man. Defendant would not be liable as for making him a drunkard.”
It was held in Johnson v. Schultz, 74 Mich. 75, that it was error to permit the jury to award damages for the loss of the companionship of the husband as a sober man, when it appeared that he had become an habitual drunkard before the occasion upon which the sales were charged to have been made by the defendant. In that case, however, the rights of the defendant were in no way guarded by an instruction which distinguished between sales made prior to the dates charged in the declaration and subsequently. But, in the present case, the judge charged the jury upon the subject as follows:
“It would be true, gentleman, that this defendant could not be held responsible for damages or injury which she may have suffered by reason of the sales of intoxicating liquor to her husband at a time before he had anything to do with it, — that is, I mean, prior to the year 1888, when Mr. Cheever went into the business; but if he did sell liquor after that time, from which the plaintiff suffered injury, even though he may have been, at the time when he began the sale of liquor to him, a man who had suffered much from drink, or she may have suffered much by reason of the fact that he had been a hard drinker, still that would not relieve the defendant from responsibility for such damages as she may have suffered by reason of his action, under the instructions I have given you.”
In another portion of the charge the court said:
“Of course, the plaintiff cannot recover for any injury to which the defendant did not contribute by the sale of intoxicating liquors which he did not either sell or contribute to.”
“The testimony as to the cause of the death of the husband, and the circumstances of his death, is stricken from the case, because it was hearsay testimony entirely, and there can be no recovery here upon the part of the plaintiff by reason of any injury which she may have suffered by reason of his death, whatever the circumstances of it might have been. This action was brought before the death, and there is no claim for any such damages, and consequently they cannot be recovered.”
We are not able to say that this ruling cured the error. Plaintiff’s counsel, on the cross-examination of one of defendant’s witnesses, was permitted to ask this question: “Is it not true that you heard that he [referring to plaintiff’s husband] .committed suicide in Jackson, after a long debauch?” — which was objected to, and the objection overruled by the court. The witness replied: “I heard that he was found dead in the room. I do not know whether he was drunk or not.” Question: “Did you not hear that it was the result of a long drunken debauch? Now, is that not what you heard?” — which was likewise objected to, and under exception he was permitted to say: “Why, yes, sir; kind of accused of being drunk.” When this testimony was received, it must have been considered by the jury as having some relevancy to the case; and we cannot say, particularly in view of the fact that the verdict was large when considered in connection with the proof of positive damages, ..that its admission did not prejudice the jury, or was cured by the instructions given by the circuit judge.
Ns the case must go back for a new trial,-we think it
For the error in admitting the testimony relative to the death of the husband and his expectation of life, the judgment will be reversed, and a new trial ordered.