
    Elkin v. Buschner.
    In an action on the case against a tavern Iceeper to recover damages for the death of a man to whom he had sold liquor, it appeared that the deceased, ■on the day of his death, went into the defendant’s tavern in an intoxicated condition and while there he was served with a glass of beer, the half of which he drank. He then left defendant’s saloon and went to another saloon. He then mounted his wagon, and, while driving, fell off the seat backward and was picked up dead. The court charged that if the deceased had a reputation of being a man of intemperate habit, and the defendant knew that such was his reputation, it was sufficient notice of the intemperate habit of the decedent, and it was not necessary that the defendant should have written or verbal notice.
    It is no cause for reversal, in the above case, that the court charged that whenever a man is under the influence of liquor so as not to be entirely at himself, he is intoxicated, although he may not give any evidence of intoxication to the casual observer, where the court further comments upon the evidence of the intoxication of the decedent.
    Nor was the expression of opinion by the judge, as follows, in the above case, cause for reversal: “ If the decedent was intoxicated when he went into ■defendant’s saloon, it is very fair to assume that the additional amount he drank in there would increase his intoxication.”
    Oct. 25, 1888.
    Error, No. 127, Oct. T. 1888, to O. P. No. 2 Allegheny Co., to review a judgment on a verdict for plaintiff, in an action of trespass on the case, bjr Eliza Buschner, widow, and Anna Bose and Maggie Buschner, minor children of John Gr. Buschner, deceased, against Henry Elkin and A. A. Elkin, his wife, to recover damages for the death of John Gr. Buschner, at April T. 1887, No. 422.
    
      The action is stated to be case, but the narr. is not printed in the paper-books.
    The facts appear in the following charge of the court, by White, J.:
    u The action is based mainly upon the Act of 1854, which is not a special law relating to Allegheny county, but is a law of the whole state of Pennsylvania, ‘wilfully furnishing intoxicating drinks, by sale, gift or otherwise, to any person of known intemperate habits, to a minor, or to an insane person, for use as a beverage, shall be held a misdemeanorand the statute provides that the person may be indicted in the criminal court and punished in that way. It also provides the ‘ wilful furnishing of intoxicating drinks as a beverage to any person when drunk or intoxicated shall be deemed a misdemeanor ’ and punishable also by indictment in the criminal court. Then, there is another section of the statute: ‘ Any person furnishing intoxicating drinks to any other person, in violation of any existing law, or the provisions of this Act, shall be held civilly responsible for any injury to person or property in consequence of such furnishing; and anyone aggrieved may recover full damages against such person so furnishing, by action on the case, instituted in any court having jurisdiction of such form of action.’ . . .
    “ To enable the plaintiff to recover in this case, the jury must be satisfied of two things: first, that the deceased was a man of known intemperate habits when the defendant sold him the glass of beer, or that he was intoxicated at the time; and, secondly, that, the beer or liquor he sold him was the cause of his death. You will observe that there are two features in this case. One is the selling to a man of known intemperate habits, although not under the influence of liquor at the time it was sold to him. If he was. known to be a man of that kind, the penalty is imposed by law upon the man selling him one glass of anything, or, if he is not known to be such a man, if he is drunk or intoxicated at the time the liquor was sold to him.
    “ Now, what do we mean by a man being drunk or intoxicated ? We often have very contradictory testimony on that subject. One man will say a person was drunk at the time of a certain occurrence. Another will say that he was not drunk; that he was sober. A great deal of such testimony can be explained by the different ideas those persons have as to what is meant by drunkenness or intoxication. There are degrees of intoxication or drunkenness, as everyone knows. A man is said to be dead drunk when he is perfectly unconscious, powerless. He is said to be stupidly drunk when a kind of stupor comes over him. He is said to be staggering drunk when he staggers in walking. He is said to be foolishly drunk when he acts the fool. All these are cases of drunkenness, of different degrees of drunkenness. So it is a very common thing to say a man is badly intoxicated, and again that he is slightly intoxicated. There are degrees of drunkenness, and, therefore, many persons may say that a man was not intoxicated, because he could walk straight; he could get in and out of a wagon.
    “ What is meant, gentlemen of the jury, by the words in the statute which makes it a penal offence, and also the party liable in a civil action for damages for giving liquor to a man that is ‘ drunk or intoxicated; ’ because both words are used in the statute ? And also, ‘ selling to a man of known intemperate habits ?’
    [“ Whenever a man is under the influence of liquor so as not to-be entirely at himself, he is intoxicated; although he can walk straight, although he may attend to his business and may not give any outward and visible signs to the casual observer that he is drunk,] [1] yet if he is under the influence of liquor so as not to be at himself, so as to be excited from it and not to possess that clearness of intellect and that control of himself that he otherwise would have, he is intoxicated. A man who is in the habit of getting drunk now and then, or getting under the influence of liquor every once in a while is a man of intemperate habits. In this case, it is admitted by the defendant that he sold the deceased a glass of beer. He says only one glass; and that the man took only two or three sips from it and set it down ; that he went away then and could not-tell whether he afterward drank the whole of it or not.
    “Now the question is, first, was Gottlieb Buschner a man of intemperate habits, and did the defendant know that fact ? Though he may not have been drunk at the time, yet if the defendant knew that he was a man of intemperate habits, it was unlawful for him to sell him one glass of beer. [To know of a man’s intemperate habits, it is not necessary to see him drunk and know to an absolute certainty by personal knowledge that such are his habits ; nor is it-necessary that the defendant should have had written notice, or even verbal notice served upon him, telling him that this man was of intemperate habits.] [2] [It is not necessary that he should know of his own personal knowledge, by seeing him, or otherwise, that he was a man of intemperate habits. If that was his reputation in the neighborhood where he lived, and if the defendant knew that such was his reputation, that would be sufficient.”] [3]
    “Now, you will understand that there are two branches of this question : first, selling to a man of known intemperate habits who was perfectly sober at the time the liquor was sold; or, selling to a man who was intoxicated at the time. There are those two phases of the case.
    “'Now, take the second : Was he intoxicated at the time the defendant sold him the glass of beer? That depends very largely on what the defendant and his witnesses may consider to be intoxication, if you believe the witnesses on the part of the plaintiff. You have the testimony of several witnesses that they saw him only a short time before he entered the defendant’s saloon, and they testify that he was intoxicated. Mr. Diamond, I believe it was, who sold him the door, tells you of his conduct, and tells you how foolishly he acted, and that he was very much intoxicated at the time, and went right from his shop iip toward the defendant’s saloon; and, from the other testimony, he very shortly entered the defendant’s saloon. Then you may take the testimony of the witnesses who were there. 1 think they are Jack, Bullcey, Bright, Hoteling and Dell. All of those saw him in the saloon. One man says that he took, he thinks, three or four drinks there, although he thinks that Buschner only took one, and that he was sober. All the others testified that they did not see anything wrong with him; thought he was sober. What do they mean by being sober ? Was he perceptibly and visibly under the influence of liquor at the time? Take the testimony of ’Squire Hoteling, the justice of the peace who went in there and had a conversation with him there. He says he was very much excited and was talking about some man, and the ’Squire says he could not say whether the excitement was from that, or from liquor,-but he was very much excited and was crying. Another witness speaks about him counting out money and dropping some. Take what occurred there and the conversations there during fifteen or twenty minutes or so that he was in the house. The facts as to his conduct there are probably entitled to more consideration than the mere opinion of the witnesses. Then, from all the testimony in the case, you must decide whether the defendant was intoxicated when he went in there, or, secondly, whether he was a man of known intemperate habits and the defendant knew that fact; because, in either case, he committed an unlawful act in selling him one glass of beer. On these points, you will take into consideration all the testimony. T have not referred to all of it, but I believe there is only one witness that testifies that the deceased had a good reputation for temperance or sobriety. Quite a number testified the opposite, especially Hr. Grier, who says that for the last year he was almost continually intoxicated; called him a sot; hardly ever saw him but what he was under the influence of liquor.
    
      “ If you find, then, that the defendant did unlawfully sell him a glass of beer — I mean either that he knew that he was a man of intemperate habits, or that he was drunk, under the influence of liquor, at the time, then you pass to the other question : [Was the act of the defendant the cause of his death? It was not the immediate cause; falling from the wagon into the' street was the immediate cause of his death; and the defendant sold him but one glass of beer and he did not drink more than half of that; it is hardly likely that made him drunk. If he was intoxicated when he came into the defendant’s saloon, it is very fair to assume that the additional amount he drank in there would increase his intoxication.] [4]
    [“ It is said that he went into another saloon after that. I believe there is no evidence that he drank any in that saloon. Hr. Bright said that he went in and the deceased asked him to drink, and that he drank his, but he did not say that Buschner drank his. He may have said that he drank a portion of it — perhaps that is so. That was after he was in the defendant’s saloon.] [5]
    
      “ Now this question is raised: Was his drunkenness the cause of his death? He did not die of drunkenness; he did not die of the drink, but from the fall out of his wagon. Would he have come to that end if he had not been under the influence of liquor ? If he was so much under the influence of liquor, whether very badly drunk or not, if he was so much under the influence of liquor as not to have control of himself, and not to have that intellectual perception that he would otherwise have had, and, in consequence of that, tumbled out of the wagon, then the drink, or intoxication, would be the proximate cause of his.death.
    “ Then the next question is: Was the one glass of beer furnished by the defendant the cause of his death? We cannot say that, but if he came to his death in consequence of his being drunk, every one that assisted in making him drunk, or continuing his drunkenness, is responsible. You cannot divide it. A man goes around among a half a dozen different saloons and gets drink, and, finally, in consequence of that drink, gets killed. Yon could not sue the various saloon men and portion out the damages among them, but every one that commits an unlawful act that contributes to a disaster is responsible for the full amount of damages. If half a dozen men are engaged in perpetrating an unlawful act, in the way of destruction of property, one man may do very little, the others may destroy it, but every one engaged in it is responsible for it all. So that, if the defendant only furnished the deceased one glass of beer, and the man got killed in consequence of his drunkenness, and that glass of beer contributed to the drunkenness and contributed to his death, then the defendant is responsible. . . .”
    Yerdictand judgment for plaintiffs for $1000, Dec. 10, 1887.
    On a motion for a new trial, Dec. 14, 1887, the following alleged after discovered evidence was offered by defendants: John G. Buschner, on the 18th day of October, 1886, while driving along Railroad avenue from Hulton, at or near the residence of H. S. Paul in the borough of Yerona, struck his horses a smart "blow with his whip, thereby making the horses suddenly spring forward; as they did so the wagon struck a deep rut or ditch in the road, and the said Buschner accidentally fell out and broke his neck. This evidence came to the knowledge of said defendants on Monday, Dec. 12, 1887.
    The court refused a new trial.
    
      “Assignment of errors:
    
    “As a whole the charge of the court was calculated to mislead the jury.
    “ The court erred in its charge as follows, viz: [quoting the portions of the charge in brackets, as paragraphs lst-5th.]
    “ The court erred in refusing a new trial on after-discovered evidence that would probably have produced a different verdict.”
    
      Arch. H. Rowand, Jr., for plaintiff in error.
    There was no evidence that the beer was intoxicating. It is cause for reversal to submit a case with evidence. Reeves v. Railroad Co., 30 Pa. 454; Garrett v. Gonter, 42 Pa. 143; Longenecker v. Pa. R. R., 105 Pa. 328.
    A privilege is granted to sell liquors by retail; a reasonable exercise of that right, accompanied with a cautious regard to the rights of others, exempts the defendants from damages. Weidman v. L. V. R. R., 2 Law Times, 127, O. S.
    The defendants should have had some notice, either written or verbal, or personal knowledge of the deceased’s intemperate habits. Act of Play 8, 1854.
    In the 3d assignment of error to the chai-ge of the court, the court omitted to state to the jury the evidence on this point as to defendant’s knowledge. The court ought not, in its charge, to give undue prominence to one part of the testimony. Bohlen v. Stockdale, 27 Pitts. L. J. 198.
    The immediate cause of the death of decedent was the fall from the wagon. The immediate, and not the remote cause is to be considered. Hoag v. Lake Shore, etc., R. R., 85 Pa. 293.
    The statement that the part of a glass would increase the intoxication, was calculated to mislead. As a general rule, the judge ought not to express an opinion upon the facts. Leibig v. Steiner, 94 Pa. 466.
    The court erred in refusing a new trial on after-discovered evidence that would probably have produced a different verdict. Com. v. Haines, C. P. Phila., 38 Leg. Int. 94.
    
      Francis F. Bennett, with him Frank W. Hughey, for defendant in error.
    This is an action based on the unlawful negligence of defendant, therefore, notice, written or verbal, as distinguished from knowledge, is not requisite. Fink v. Garman, 40 Pa. 95; Crouse v. Com., 87 Pa. 168.
    Defendant was a saloon-keeper bound to know to whom he furnished liquor, bound to use at least reasonable endeavor and inquiry in learning and knowing the customer’s condition at the time and general reputation for sobriety. Com. v. Barnes, 138 Mass. 511; Com. v. Farren, 9 Allen, 489; Com. v. Goodman, 97 Mass. 117; Brow v. State, 103 Ind. 133; Mulreed v. State, 107 Ind. 62; Com. v. Emmons, 98 Mass. 6.
    Beer is an intoxicating liquor. Kerkow v. Bauer, 15 Nebraska, 150; Stout v. State, 96 Ind. 407; State v. Camille Teissedre, 30 Kan. 476; Pierce v. State, 109 Ind. 535.
    There was no error in the 1st extract from the charge. And especially so when the learned judge limited the above language, Stout v. State, 96 Ind. 407, and left the question fully and fairly to the jury. Johnson v. Com., 115 Pa. 369.
    As to the 2d, 3d and 4th extracts there is no error, and when these parts are taken in their place with the context as they stand in the general charge they are full, fair and just.
    As to the 5th assignment of error, the ■ matter is ruled in Fink v. Garman, 40 Pa. 495.
    
      The granting or refusing of a new trial is not assignable for error. Burke v. Young, 2 S. & R. 383; Werkheiser v. Werkheiser, 6 W. & S. 184.
    Even if the judge did positively and strongly express an opinion, still, if the matter was left to the jury, it is not error. Cent. R. R. of N. J. v. Green, 86 Pa. 421; Leibig v. Steiner, 94 Pa. 466; Blatz v. Rohrbach, 42 Hun, N. Y. 402; Stout v. State, 96 Ind. 407. Even in a capital case it is not error. Johnson v. Com., 115 Pa. 369.
    Nov. 5, 1888.
   Per Curiam,

This was a case for the jury; that is made manifest by an examination of the facts. To that body the court properly submitted those facts, and the verdict conclusively establishes the default of the defendant in furnishing intoxicating drink to Buschner when intoxicated, in consequence of which he lost his life.

The judgment is affirmed.  