44 Ind. App. 674 | Ind. Ct. App. | 1909
Appellee, plaintiff below, recovered judgment against the appellants for $1,200 damages for loss of means of support through the alleged unlawful sale of intoxicating liquor to appellee’s husband.
The errors assigned and discussed challenge the sufficiency of the complaint, which is in one paragraph, and the action of the court in overruling appellants ’ motion for a new trial.
In the case of Mitchell v. Ratts (1877), 57 Ind. 259, a complaint was based upon §8355, siipra. It charged the defendant with having sold liquor to the plaintiff’s husband when he was intoxicated, etc. The court held the complaint sufficient. It does not appear from the opinion whether this precise question was presented. In the case of Wall v. State, ex rel. (1894), 10 Ind. App. 530, the complaint alleged that the defendant sold to one Kendall nine pints of intoxicating beer, while said Kendall was in a state of intoxication, said Wall at the time knowing him to be intoxicated. The court held that this language specifically and directly charged the unlawful sale to Kendall while he, said Kendall, was in a state of intoxication, and the defendant at the time knew him to be in a state of intoxication. In the case of Beem v. Chest
The refusal of the court to give instructions one, two, and three, requested by the appellants, is discussed. Said instructions read as follows: “ (1) If you find from a preponderance of the evidence that the plaintiff * * “ at different times, or at any time, prior to his alleged fall, furnished intoxicating liquor of any kind to her deceased husband, * * * and thereby contributed to his appetite for liquor, and to his physical condition at and before the time of his alleged fall, she would not be entitled to recover herein, even though you also find that the defendants, or either of them, did sell him intoxicating liquor as alleged. (2) If you find from the evidence that the plaintiff, * * * thus contributed to the condition of said Niehaus, at and before the time of the alleged fall, you could not weigh the respective acts of the plaintiff and defendants therein to determine whether the plaintiff or the defendants had contributed the most to such condition, as in such event you should find for the defendants, even if they had contributed the most thereto, or had furnished him more liquor than the plaintiff had. (3) If you find from the preponderance of the evidence that the plaintiff had directed the defendants not to let said de
We have passed upon the questions discussed by counsel, and find no reversible error. The verdict is not without support of the evidence.
Judgment affirmed.