44 W. Va. 644 | W. Va. | 1898
P. J. Dyer, on a writ of error toa judgment of the circuit court of Lewis county in favor of E, V, McMaster for the
H. P. McMaster, husband of the plaintiff, and a witness in the case, was asked by defendant’s attorney, “If you win this case, do you expect to sue in the name of every one of your children?” to which plaintiff objected, and the court sustained the objection; and this is the ground of defendant’s first assignment of error. The question was wholly improper, and it was therefore promptly and rightly ruled out; for. it was not a matter that the jury could consider in the plaintiff’s suit, as it could not in the least affect her right of recovery. It is true, there could be but a single recovery of exemplary damages; but plaintiff was entitled to this, as being the first person to sue for the wrong committed. Her actual damages she is entitled to recover, without regard to the suit of others,-either prior or subsequent. Secor v. Taylor, 41 Hun, 123.
• The instructions referred to in the second and third assignments of error are as follows: “No. 1. The court instructs the jury that if the mother of a minor son has been injured in her means of support by the intoxication of such son, caused in whole or in part by intoxicating liquors unlawfully sold to him by a liquor dealer, the mother fias a right of action against the person .making such sale, although at the time of such injury she may be living with a husband, on whom she depends in part for her support. (Objected by defendant). No. 2. The court instructs the jury that if they believe from the preponder-
Whether the defendant knew or had reason to believe that James H. McMaster was a minor, was a question for the jury. Certainly the evidence tended to prove such to be the case. The defendant denies the sales in fo-to, and the jury disbelieved him. • They weighed the testimony, and fixed the damages; and, while their finding is apparently severe, yet this Court is without authority to interfere therewith, and the judgment must be affirmed.
Affirmed.