
    John Schneider v. Sarah Hosier.
    1. The practice of mutilating pleadings by striking out or inserting new matter byway of amendment is disapproved; but where such alteration is made with the permission of the court, and no prejudice results to the adverse party, the final judgment will not be reversed therefor.
    2. An action for injuries sustained by a wife, in her person, or property, or means of support, under (original) section seven of the act of May 1, 1854, (S. & O. 1432), entitled “an act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” may be commenced after the death of the husband.
    3 The phrase, “means of support,” used in said section, is not too vague and uncertain to receive judicial construction.
    4. A wife has an interest in her husband’s capacity to perform labor as a means of support; and she may prosecute an action for damages resulting to her from the deprivation of such means of support, in consequence of the intoxication of her husband, against any person who caused such intoxication by selling to him intoxicating liquors in violation of said statute.
    5. The omission of a court, in its charge to the jury, to define or explain doubtful words or phrases contained in a statute upon which the action is founded, does not constitute a ground of reversal, unless such definition or explanation was requested by the party claiming to have been proju diced thereby.
    6. In all actions under said section, in which the plaintiff shows a right to recover damages actually sustained, the jury may also assess exemplary damages without proof of actual malice or other special circumstances of aggravation.
    7. The verdict in such eases should not be set aside, on the ground that the damages are excessive, unless the court is satisfied that the jury abused its discretion.
    8. Nor will the verdict be disturbed because the court in its charge stated general propositions of law not involved in the issue, if it appear from the whole charge that the jury could not have been misled thereby.
    Error to the court of common pleas of Preble county. Reserved in district court.
    Sarah Hosier, plaintiff below, filed her second amended petition against John Schneider, the defendant below, as follows :
    “ The plaintiff, during the three years immediately preceding and including the 18th day of March, a. d., 1865, was the wife of one Zimvi Hosier, on whose good conduct, frugality and personal labor, she was dependent for the support of herself and their seven minor children ; for the proper culture and moral training of the latter ; and, to a good extent, for her own position in society.
    “ The said Zimri Hosier, when not intoxicated, or labor mg under the effects of intoxication, was an industrious laboring man, and regularly earned and received for his labor one dollar and fifty cents a day, applicable to the support of themselves and their said family, and which said sum was so applied by him accordingly 
      
       But the said Zimri Hosier was in the habit of getting intoxicated, and, the defendant, well knowing the same, at divers and sundry times, on divers days and nights, throughout and during the said entire term of three years, up to, and on, or about the 12th day of the said month of March, 1865, at the village of Lewisburgh, in the county of Preble, unlawfully, wilfully and maliciously sold to the said Zimri Hosier intoxicating liquors, thereby causing him thus frequently to get intoxicated, in consequence of which, he, as often, became and was, in addition thereto, infirm and diseased, and, for times, varying from and to several days, and aggregating within the said term of three years, not less than nine months, or the average of one-fourth part of his whole time, incapable of laboring ; by reason whereof, she, as his wife, was compelled to and did take charge of and provide for him, for and during the said aggregate time of nine months, until and on the said 18th day of March, a, d., 1865, when said series of intoxications and their said effects culminated in his death : leaving her wearied with the labor of providing him with necessary food and medicine, the attention and care bestowed upon him; and burdened with the further expense of his funeral rites and burial, and of the rearing, maintenance and education of their said minor children, by her own unaided labor ; whereby she was, and is injured in her person, her property, and-her means of support; to the damage of the plaintiff, five thousand dollars, for which she prays judgment,”
    ■ The defendant moved the court to compel the plaintiff to make her second amended petition more specific and certain in the following particulars : 1st. By stating the nature of the injuries upon which the plaintiff seeks to recover; whether it be to her person, or her property, or means of support. If to her person, in what manner, and by what means. If to her property, what property, and how injured. If to her means of support, the amount thereof, and in what particulars her means of support were injured; and the special damage sustained by each. If any damage is claimed for causing the death of the said Zimri Hosier, let such claim be distinctly made, and the damages claimed on account thereof. 2d. By stating the time of the sales of liquor, and the quantity sold at each, and the damages resulting to hei person, her property, or means of support by reason of any such sales.
    On the hearing of this motion the court found the petition to be uncertain in not stating that the money earned by said Zimri Hosier, was applied to the support of his wife, and in that particular, sustained the motion ; and, as to the remainder of the petition, overruled the motion; and defendant excepted.
    Thereupon the plaintiff obtained leave of the court to amend her petition'at bar by inserting the following words at the end of the second paragraph of the petition, to wit: “ and which said sum was by him so applied accordingly.” To this the defendant excepted. All which appears in a journal entry.
    Thereupon the defendant demurred to the second amended petition for the following causes :
    1. There are several causes of action improperly joined in the petition.
    2. The plaintiff has not legal capacity to sue.
    3. The petition does not state facts sufficient to constitute a cause of action. '
    This demurrer was overruled ; and exception was taken by the defendant.
    Thereupon he filed an answer which—
    1. Denies, that on or about the 12th of March, 1865, or at any other time he unlawfully, wilfully, and maliciously sold to said Zimri Hosier intoxicating liquors, thereby causing him to get intoxicated.
    2. Denies that the plaintiff’s husband was at any time prevented, or hindered from following his usual avocation, or laboring, by reason of any sales of liquors made to him by the defendant.
    3. Denies that the plaintiff was injured in her person, her means of support, or in her property, by reason of any sale or sales of liquor by the defendant to the plaintiff’s husband.
    The cause was tried to a jury. The opinion of the court contains a statement of what the testimony tended to prove. At the trial the plaintiff disclaimed to the jury the right to recover anything on the ground of the death of the husband, or for any injury to her person or property. •
    The court charged the jury as follows :
    “ If the defendant, by the sale of liquor to Zimri Hosier, produced his intoxication, and if Zimri Hosier was a man in the habit of getting intoxicated, and the defendant knew the fact that Hosier was in the habit of becoming intoxicated, and if the plaintiff was by such intoxication of her husband, so produced by the defendant, injured in her means of support, she is entitled to compensation for the injury she has sustained.
    “You are to look at all the testimony, and determine what would have probably been the means of support which the plaintiff would have had in the event that no sale of liquor had been made to Zimri Hosier by the defendant, and to the extent that she has suffered in her means of support, by intoxication produced by the defendant, if that intoxication was produced by liquor sold in violation of law, alleged in the petition, you are to allow her damages.
    “If the deceased, Zimri Hosier, was in such circumstances that his wife and children required the proceeds, or a part of the proceeds, of his daily labor for their support, they were entitled to this support out of his daily labor; and the person who, by selling liquor to the deceased and thereby producing his intoxication, deprived them of the means of support, in whole or in part, would be liable to respond in damages to the amount of support he deprived them of.
    “ Every man who has a wife owes her maintenance. If he has not other means at command to afford that support and maintenance, he must necessarily provide such means in some comfortable manner. If his only means of affording such support is out of his daily labor, then the person who, by producing his intoxication in violation of law, renders him unfit for labor, and prevents him from pursuing his only means for the sustenance of his wife, is liable. But if the party alleged to have neglected his business from, intoxication would not have pursued his business if sober, or if, before the sale of liquors to him, as alleged, he was unfit for any occupation, in that event his wife would suffer no damage from his intoxication. But if he would have pursued his regular occupation if sober, and by intoxication produced by another, by the sale of liquor in violation of law, failed to pursue such occupation, and his wife is therebj deprived of the means of support, she is entitled to recovei to the amount which she may have been deprived of the means of support. And if the other facts appear, it is foi you to say, from the testimony in the case, in the light of surrounding circumstances, what injury the plaintiff has sustained in her means of support, and to allow her accordingly.
    “And you may go beyond this, and not only allow her the actual damages sustained, but allow damages by way of punishing the defendant, and of serving as an example to others. This is a matter within your sound discretion, as to whether you will" allow these vindictive or exemplary damages or not; or, if you allow them, what amount you will allow.
    “If there were aggravating circumstances surrounding the selling, such circumstances may be considered in assessing the amount of damages. If the defendant knew the family of Hosier needed the assistance of his labor fr-'thv-support, and that, by his intoxication, he neglected to provide for their support; and if he was requested by the wife or other persons of the family to desist from selling liquor to the husband, and still persisted, these would be circumstances in aggravation of damages. What circumstances are, or are not shown by the testimony, to exist in this case, whether aggravated or mitigated, is for you to determine. You are to look to the testimony, and the whole testimony, and render such verdict as you may think, under your oaths, is justified.
    “You should not be influenced by your personal views of the propriety or impropriety of the law. Whether the law was properly or improperly passed, is not for you or me to determine. It is the duty of courts and juries to enforce the laws in proper cases, as they may find them, until they are repealed, or by some proper tribunal declared unconstitutional.
    “ If the party was far gone in the habits of intoxication, and had become diseased bodily or mentally, and the defendant knew this fact, the selling to him, under these circumstances, would be more aggravating than selling to one not so badly addicted to intemperance, and who had more vigor of mind and body.
    “ On the other hand, if the defendant at times, in good faith, refused to furnish liquor to the deceased when requested, this would be a circumstance that might be considered in mitigation of damages. If such refusal was not in good faith, but merely to deceive persons present as to his course towards the deceased, his refusal would not be in good faith, and would, not go in mitigation. It is not intended by these remarks to intimate to the jury any opinion, as to what the facts were in this case; what the facts were, is entirely for the jury.”
    The defendant excepted to the charge of the court, and, after it was concluded, requested the court to charge the jury that before they could find the defendant’s liability fixed under the law, a preponderance of evidence must show :
    
      “ First. That the defendant sold intoxicating liquors to the plaintiff’s late husband, in violation of law, whereby her said husband was made to become intoxicated.”
    “ Second. That while thus intoxicated, from the defendant’s unlawful act, and as the probable result of such intoxication, the said husband did some act or some thing resulting in immediate and actual injury to the plaintiff, in lues person, her property or her means of support actually in existence.”
    “ Third. That the said husband’s omissions to labor while intoxicated, by the unlawful act of the defendant, cannot be made the ground of recovery in this action.”
    
      '■'■Fourth. That the wages of the said husband, for labor never performed by him, did not constitute the means of support of the plaintiff, within the meaning of the law, even if the jury should believe from the evidence, that the said husband would probably have labored and made wages had it not been for his intoxication produced by the unlawful act of the defendant.”
    The second, third and fourth of these propositions the court refused to give in charge to the jury ; and defendant excepted.
    The verdict was for the plaintiff, assessing the damages at $200. The defendant moved to set aside this verdict and for a new trial, on the following grounds :
    1. The verdict is against the weight of the evidence.
    2. The verdict is against the law of the case.
    3. The court erred in its charge to the jury.
    4. The court erred in refusing to charge as requested by the defendant.
    
      5. The damages are excessive, and were given under the influence of passion, prejudice and misapprehension of the law and evidence.
    This motion was overruled, and exception taken, and judgment entered on the verdict.
    
      To reverse the judgment the defendant filed his petition in the district court, claiming that the common pleas erred :
    1. In overruling his motion to make the second amended petition more definite and certain, and in permitting the plaintiff below to amend her petition at bar, without verifi cation of the amendment.
    2. In overruling the demurrer to the petition as amended.
    3. In the charge to the jury, and in refusing to charge as requested by the defendant below.
    4. In overruling the motion to set aside the verdict and for a new trial.
    The cause was reserved in the district court for decision in this court.
    
      Gilmore & Campbell, (with Hubbard & Freeman) foi plaintiff in error:
    1. The statement of facts and averments of the second amended petition are such as to leave it uncertain whether the plaintiff below placed her right to recover on the sixth or on the seventh section of the “ liquor law,” (S. & C. 1432,) or on the act allowing damages for unlawfully causing the death of her husband. S. & C. 1139.
    2. The demurrer to the petition was improperly overruled :
    (1.) The plaintiff improperly joined causes of action which should be separately stated and numbered. Code, secs. 85, 86.
    (2.) The plaintiff had not legal capacity to sue in the action. The original petition was filed after her husband’s death. The right of action against the defendant, which she had as a wife, under the seventh section of the liquor law, did not suxwive to her as a widow.
    
    The liquor statute is pexxal in its character, axxd should be strictly coxxstrued. Hall v. The State, 20 Ohio, 7 ; U. S. v. Wilson, Baldwin’s C. C. Rep. 78. The widow is not within the definition of the sevexxth section, taking the word in its ordinary acceptation. The statute does not provide that the right of action — a purely statutory right — given to the wife shall survive to her as a widow. Where oxxe claims a statutory right against another, he shall bring' himself clearly within the terms which confer that right. Rolcliff v. Beck, 10 West. Law Journal, 72, and cases there cited.
    The statute does not vest in the wife any interest or property, but simply a naked right of action. The plaintiff, as wife, had no claim or title whatsoever, till after suit commenced, to the damages for which the seventh section gives her a naked right of action only.
    
    3. The court erred in refusing to set aside the verdict and grant a new trial.
    (1.) The verdict is against the weight of the evidence and the damages are excessive.
    (2.) The verdict is contrary to law. The plaintiff rested her right to recover on the ground of injury to her “ means of support.” The phrase is too loose, vague and uncertain to found upon it an action at law to recover a penalty. The phrase cannot be used by the wife for the recovery of damages for an injury to a thing so intangible as the uncontracted, unperformed future labor of the husband.
    (3.) The court erred in its charge to the jury and in refusing to charge as requested. The charge was inapplicable and legally unsound. The court fails to give a legal definition to the vague phrase “means of support.” Each juror was left to guess its meaning.
    It was error to unite the children with the wife. Each of them had a right of action, under the statute. She had sued for herself alone, and could not recover for them or on account of them. The language of the statute is, “that every wife, child,” &c., shall have a right of action, &c.
    It was stating the case too strongly, and erroneously, and in a way calculated to mislead the jury, for the court to say that every husband “micst necessarily procure” means of support for his wife, &c.
    As to exemplary damages, the charge was erroneous and calculated to mislead the jury, and prejudice them against the defendant. The term “ exemplary damages ” is used without qualification in the seventh section. It must be presumed, therefore, that it is used in the sense in which it is understood at law, and it cannot be expanded or contracted from this. “ Exemplary damages are given in cases where the aggressor is animated by a fraudulent, a malicious, or an oppressive intention.” Sedgwick on Damages, p. 35. And the defendant must have acted with these, or some of these, toward the plaintiff. The testimony shows no legal ground upon which exemplary damages could be allowed ; and the court should either have said so to the j ury, or have said nothing on the subject of exemplary damages. The court failed to indicate or define the legal grounds upon which such damages are allowable, but gave the jury erroneous impressions on the subject and turned them in upon the defendant with no rule to guide them but their 11 sound discretion."
    
    Throughout the charge, matters of fact which should have been left to the jury, are charged as matters of law. Kober v. The State, 10 Ohio St. 444.
    
      J. H. Foos, for defendant in error :
    1. The second amended petition contains but one cause of action. All the averments in the petition respecting the death of the husband are simply descriptive of the injury to the plaintiff’s means of support, and do not profess to be a substantive ground of recovery.
    2. The plaintiff had legal capacity to sue. The action is by her as a person, Sarah Hosier, not as a widow. The injury was done to her while she was the wife of Zimri Hosier, and his death did not work a forfeiture or abatement of this right. It was not necessary to the continuance of the right of action that the suit should have been brought in the life time of the husband. This is not a case where the principles of survivorship obtain. The husband had no interest in the subject matter of the suit. His death did 'not affect the right of the wife. If she had died before suit brought, the question of survivorship might have been raised. But in the present case no one has died who had any interest in the controversy ; both parties are living. If the plaintiff does not come under the description of “wife,” she surely does come within the description of “ other person,” as used in the statute.
    The civil action given by the statute, is not a penal action. It is like actions for a malicious prosecution, injury to per sónal property, or slander; in all of which exemplary damages may be given as a punishment for the malice. And yet these actions are not termed or known as penal actions, nor are the rules governing them construed strictly.
    2. The motion for a new trial was properly overruled:
    (1.) The verdict is not against the weight of the evidence, and the damages are not excessive.
    (2.) The verdict is not contrary to law. By virtue of the statute giving the right of action, the plaintiff was entitled, on the facts stated in the petition, to recover for the injury to her “means of support,” resulting from her husband’s inability, in consequence of intoxication, to perform labor and earn wages necessary and applicable to her support. Duroy v. Blinn & Letcher, 11 Ohio St. 331. T^e wife has the right to be supported by the husband, (2 Kent Com. p. 146,) and by his daily labor, if necessary.
    (3.) The charge of the court, when taken as a whole, will be found to be a correct exposition of the law of the case.
    
      
      Th.e italicized words were interlined lby way of amendment.
    
   McIlvaine, J.

We find no error in the overruling of the motion to make the second amended petition definite and certain. The natui’e of the charge contained therein is sufficiently apparent. The petition contains, no doubt, much irrelevant matter that might have been stricken out, but no objection was made by motion to strike out; which is the only way of reaching such matter.

It is also assigned for error, that on the hearing of the motion to make the second amended petition definite and certain, the plaintiff below was permitted by the court, against the objection of the defendant, to amend, by inserting in the petition an allegation that the proceeds of her husband’s labor had formerly been applied to her support, without subsequent verification.

The petition containing the averment referred to, appears in the record properly verified. It is true, the clerk entered upon the journal of the court the fact as claimed by plaintiff in error, but the only proper mode of saving such rulings upon the record is by bill of exceptions.

The practice of mutilating pleadings by striking out or inserting new matter by way of amendment, must be condemned ; but in this case, even if the question had been properly saved, it would not afford ground for reversal, as it is clear the defendant was not prejudiced by the alteration, for the reason that the amendment was immaterial and unnecessary. Before the alteration, the petition contained a statement that the plaintiff was dependent upon the labor of her husband for her support, which certainly was a sufficient predicate for an averment of injury by being deprived of such means of support.

But quere — whether it was necessary to aver that she was dependent upon his labor for her support ? .

The overruling of the demurrer to the second amended petition is also assigned for error.

The demurrer specifies these grounds of objection:

1st. That several causes of action are improperly joined.

2d. That the plaintiff has no legal capacity to sue; and

3d. That the petition does no,t state facts sufficient to constitute a cause of action.

As to the first objection. There is, in fact, but one cause of action stated in the petition. The action is brought under the seventh section (original), of the act of May 1, 1854, (S. & C. 1432), entitled “ An act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” to recover damages for injuries sustained by the plaintiff, as the wife of Zimri Hosier, in consequence of his intoxication caused by the defendant.

Said section reads as follows : “ That every wife, child, parent, guardian, employer or other person, who shall be injured in person or property or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, such wife, child, parent, guardian, employer or other person shall have a right of action, in his or her own name, against any person who shall, by selling intoxicating liquors contrary to this act, have caused the intoxication of such person, for all damages actually sustained, as well as exemplary damages,” &c.

As to the second objection taken by the demurrer. It is claimed that the plaintiff below had no legal capacity to sue: “ 1st, because the statute does not provide that the right of action given to a “ wife” shall survive to her as a widow. And 2d, because, the statute does not vest in the wife any interest or property, but simply a naked right of action.”

It may be conceded that this statute, being in its nature penal, and providing a remedy unknown to the common law, must be strictly construed, and therefore, no person can maintain an action under its provisions to whom a right of action is not given by its terms. .

The term “wife” is used to designate a class of persons to whom the right of action is given. The plaintiff was the wife of Zimri Hosier at the time the defendant caused his intoxication, and at the time the injuries complained of were sustained. The right of action then vested in her, and having vested, the statute did not divest it upon the death of her husband ; nor does it abate upon common law principles. The husband had no interest in it, and no control over it. The right of action vested in her, to be prosecuted in her own name and for her sole use. She did not lose her identity by the death of her husband. True, the relation of wife closed, but that relation, although essential, by the terms of the statute, to the inception of the right of action, is not necessary in the prosecution of the remedy. The plaintiff does not sue because she is the widow of Zimri Hosier, but because she was his wife at the time she was injured. The term “ employer” is used to designate another class of persons to whom a right of action is given by the terms of this statute. If the right of action vested in a' wife abates upon the dea,th of her husband, because the relation of wife no longer exists, I take it, that an employer cannot sue under this statute after the relation of master and servant has ceased. Strict construction does not lead to such conclusions.

Nor is the right of action given by this statute a mere naked right, as in popular or qui tarn actions. But it is a right to a remedy for a real injury ; a means of recovering actual, personal damages.

In popular actions the right to sue is given to any person who may first prosecute, not for a personal injury, but for a penalty to which the prosecutor has no claim until suit is commenced. Under this statute the right of action is confined to the persons named, and they cannot recover unless they prove actual injury to their persons, or property, or means of support.

As to the third objection stated in the demurrer. It is sufficient to say, that the statutory grounds of action are all sufficiently stated in the petition.

The defendant below moved the court to set aside the verdict and for a new trial, upon the ground that the verdict was contrary to the law and evidence. The overruling this motion is claimed to be error.

The testimony tended to prove, (and it was sufficient for that purpose) that the'plaintiff’s husband, for some time previous to his death, was habitually intoxicated ; that the defendant sold him intoxicating liquors in'violation of the act of May 1, 1864, and thereby caused his intoxication ; that by reason of such intoxication, he (the husband) was rendered incapable of performing his ordinary labor; that the plaintiff was dependent on his labor for support; that the proceeds of his labor had previously been applied for that purpose ; that in consequence of such intoxication the plaintiff was compelled to resort to other resources for the supply of her wants ; that plaintiff was reduced to a state of want, although the husband continued to furnish a portion of her means of living, from money received on the sale of his property.

The plaintiff on the trial disclaimed any damage resulting to her from the death of her husband, and also for any injury to her person or her property, and relied solely upon the claim that she had been injured in her means of support.

Upon this state of facts two objections are made by plaintiff in error: 1st. That the phrase “means of support,” as used in this statute, is too vague to receive judicial construction ; and 2nd. That if the meaning- of this phrase can be ascertained, still, the plaintiff was not injured in her means of support.

This phrase was in common use at the time and long before the passage of this statute. It then was and still is as well understood as most words and phrases in the English language. It is commonly used in the plural form, but often in a singular sense. In its general sense it embraces all those resources from which the necessaries and comforts of living are or may be supplied, such as lands, goods, salaries, wages or other sources of income. In its limited sense, it signifies any resource from which the wants of life may be supplied.

We are not called upon in this case to determine the full extent and scope of its meaning, but only to ascertain whether the wages or proceeds of ordinary labor is a “means of support” within the meaning of the statute. And of this proposition we entertain no doubt. See Duroy v. Blinn, 11 Ohio, St. 331.

Ordinary labor being a means of support, the next question is, whether the labor of the husband, or its proceeds, can be regarded as the wife's means of support.

A husband is morally and legally bound to supply his wife with the necessaries and comforts of life. If he has no other resource, it is his duty to contribute his labor and its proceeds to her support. And the wife has a corresponding right to be maintained and supplied, and to that end she has an interest in all her husband’s resources. It is upon this principle that alimony is decreed to a wife out of her husband’s estate, or charged upon him personally. A wife then has an interest in the labor of her husband, and in its proceeds, and especially when that labor is necessary for her support. If she has an interest in her husband’s labor and its proceeds as a means of support, she has an interest also in his capacity to labor. Capacity to labor is a means of support; and any deprivation of her rights or interest in the proceeds of his labor, or his capacity to labor, is an injury to her in her means of support. This must be so, especially if she be dependent upon such labor for her living in whole or in part.

Nor is it an answer to say, that because the common law gave her no remedy for the wrongful deprivation of her rights in such a case, that, therefore, she was not injured. Her injury was none the less without than it would have been with a remedy. It is not true that the common law gave a remedy for every wrong or injury.

It is further objected that the court erred in the charge as given to the jury, and in refusing to charge as requested.

Without referring specially to the charge as given, or to the requests refused, it will suffice to state the rules by which the objections urged must be determined against the plaintiff in error :

1st. The omission of a court, in its charge to the jury, to define and explain doubtful words or phrases contained in a statute upon which the action is founded, does not constitute a ground for reversal, unless such definition or explanation was requested by the party claiming to have been prejudiced thereby.

2d. Nor will a verdict be disturbed because the court charged the jury upon general propositions of law not involved in the issue, if it appear from the whole charge that the jury could not have been misled thereby.

3d. Whatever may be the rules of the common law as to the state of facts necessary to justify the assessment of exemplary damages, it is clear to our minds that exemplary damages may be recovered in any action brought under this section, in which the evidence shows a right to recover actual damages. The amount of such damages is left to the sound discretion of the jury, subject tobe controlled by the court when such discretion is abused. In actions under this statute the jury, in the exercise of its discretion as to exemplary damages, ought to consider all the circumstances properly before them tending to aggravate or mitigate the conduct of the wrongdoer.

We find no error in the charges given, or in refusing the charges requested.

The whole amount of damages awarded in this case was $200.00. We cannot say that this amount was excessive.

Judgment affirmed.

Soott, C. J., and Welch, White and Day, JJ., concurred.  