
    Sibila v. Bahney.
    1. Where a variance between the allegations of the pleading and proof is not material within the meaning of section 131 of the code, the fact that the pleading was not amended to conform to the proof, as provided for by section 132, will not constitute ground for the reversal of the judgment on error.
    2. In an action brought under the seventh section of the act to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18, 1870, it is not necessary that the liquor be sold in violation of the act of 1854. If sold in violation of any act prohibiting the sale, or furnished in violation of the act of 1866 (S. & S. 748,', the action will lie.
    3. The provision of said amended section, which creates a liability on the part of the seller for an injury resulting from intoxication, to which the-liquor unlawfully sold or furnished by him contributes only in part, is-not in conflict with the constitution.
    4. In an action brought by a married woman, under said amended section, for an injury to her means of support in consequence of the intoxication of her husband, it is not error for the court to refuse to charge that “if the jury award the plaintiff any amount by way of exemplary damages, they should not consider the fact, if such they find it to he, that certain of the illegal sales were made on Sunday.”
    5. ’Where it appears in such action that the damages awarded by the jury are excessive, the court on error, on a remittitur of such excess, may affirm the judgment.
    Error to the District Court of Stark county.
    The action below was brought by the defendant in error,. Rebecca A. Bahney, wife of Joseph Bahney, against the plaintiff in error, Nicholas Sibila, under the 7th section of the act to provide against the evils resulting from the sale .of intoxicating liquors, as amended April 18, 1870. She-alleged in her petition, among other things, that “ on and after the 5th day of July, a. d. 1870, and from that time until the 24th day of December, a. d. 1872, said defendant did unlawfully cause the said Joseph Bahney to become and be habitually intoxicated, by the said defendant, at said county of Stark, on said 5th day of July, A. D. 1870, and at divers times from that time to the said 24th day of December, a. d. 1872, at said county, willfully, knowingly, and unlawfully selling and giving intoxicating liquors to the said Joseph Bahney, to-be by said Joseph Bahney drank on the premises -where sold, the said Joseph Bahney, as the said defendant well knew, being then and all that time in the habit of getting intoxicated. That in consequence of said habitual intoxication so caused by said defendant, the plaintiff, at and during the time aforesaid, was injured in her present and future means of support,-and especially in this, that,, while so intoxicated, and by reason of his habitual intoxication, so caused by said defendant, said Joseph Bahney,. at various times, from the said 5th day of July,-1870, to the-time of his death, on the said 30th day of December, a. d. 1872, greatly neglected his business, squandered his time,, spent his money in drinking intoxicating liquors, and gambling, and losing large sums of money in gambling,, while so intoxicated ; and said Joseph Bahney, by said intoxication, so caused by said - defendant, as aforesaid, was. much impaired and debilitated in body and mind, so that, he could not and did not attend to his business ; and by reason of said habitual drunkenness of her said husband, caused as aforesaid, and during the period aforesaid, the said, plaintiff says she was greatly injured in her present and future means of support, and to her great damage.
    “ And so the plaintiff says that said defendant, by selling- and giving intoxicating liquors, as aforesaid, at the time and place aforesaid, and during the time aforesaid, then and there, and thereby, causing the habitual intoxication of the said Joseph Bahney, injured and damaged the plaintiff in her present and future means of support, in the sum of five-thousand dollars.”
    The defendant in answer to the petition admitted the marriage relation as alleged in the petition between the plaintiff and Joseph Bahney, but denied all and singular the remaining allegations of the petition. The first trial resulted in a verdict and judgment for the plaintiff below for $2,500. The-second trial, taken by defendant below under the statute then in force authorizing it, resulted in a verdict of $5,000. The defendant below moved the court to vacate the judgment, and to grant a new trial for the following reasons :
    1. That the court erred in the trial of the cause in permitting certain evidence offered by the plaintiff to. be introduced and given upon the trial to the jury against the-objections of this defendant.
    2. That the court erred in the trial of the cause in rejecting evidence offered by this defendant.
    3. That the court erred in its charge to the jury.
    4. That the court erred in refusing to charge the jury as-requested by the defendant.
    
      5. That the verdict of the jury is against and contrary to the weight of the evidence.
    6. That the damages given by the jury are excessive,
    This motion was overruled, and a judgment entered on the verdict, which was afterward affirmed by the district ■court. To reverse the judgment of affirmance, and the judgment of the court of common pleas, is the object of the present proceeding in error.
    From the bill of exceptions taken at the trial, setting nut all the evidence, it appears that the court permitted the plaintiff below, against the objection of the defendant, to give evidence of sales of intoxicating liquor to be drank ¡by the plaintiff’s husband at places elsewhere than on the ¡premises where sold; also of sales made on Sunday, in violation of the act of February 17, 1831 (1 S. & C. 448, § 2); also, that the defendant sold to other persons, for and by •whom the liquor was furnished to Bahney, at the bar of the defendant, to be there drank by him. It also appeared in evidence, that said Bahney drank at other saloons during the period of time stated in the petition, which caused in.part the intoxication resulting in injury to the plaintiff’s means of support. The evidence also tended to show that 'during all said period Bahney was in the habit of getting ■■intoxicated, to the knowledge of the defendant.
    The court, among other things, charged the jury as follows :
    “ The next provision of law to which I will call your attention, is the second section of the act February 17, 1831. By this section it is made unlawful and punishable for any tavern-keeper, or other person, to sell or barter any spirituous liquors on the first day of the week, commonly called Sunday, except to travelers.
    “By the act of April 5, 1866, it is made unlawful and punishable for any person to furnish to any person, who is .at the time intoxicated, or in the habit of getting intoxicated, any intoxicating liquors whatsoever, unless given by a physician in the regular course of his practice.
    
      “ This law, you will observe, makes it unlawful to furnish 'intoxicating liquors, contrary to its provisions.
    “ The previous provisions of law, to which I called your ■attention, made it unlawful to sell contrary to their provisions. I call your attention to this provision as to furnishing liquor, for the reason that there is some testimony in ■the case tending to show that persons other than Joseph Bahney purchased liquor of the defendant, part of which was furnished to said Bahney by the defendant.
    “If Bahney was so furnished with intoxicating liquor by the defendant, Bahney being at the time, to the knowledge of defendant, intoxicated, or in the habit of getting intoxicated, the act or acts of so furnishing liquor were unlawful.
    “Second. Did the defendant, by means of the liquor or liquors so unlawfully sold or furnished by defendant to the said Joseph Bahney, cause the intoxication of said Bahney?
    “ The defendant can only be made responsible for such •instances of intoxication of the plaintiff’s husband, as may have been caused in whole, or in part, by liquors which he may have so illegally sold or furnished.
    “ If said Bahney was, on a particular occasion or occasions, intoxicated during said period, to which intoxication, on said occasion or occasions, the liquors of the defendant, so sold or furnished to Bahney, did not contribute in whole or in part, the defendant is not responsible for such instance or instances of intoxication. But, if defendant’s liquor, so sold or furnished to Bahney, during said period, in part caused the intoxication of said Bahney, the defendant would be responsible for such instance of intoxication, although liquor, which was not obtained from defendant, also, in part, caused, or contributed to, such instance of intoxication. And if the liquor so sold or furnished by defendant to Bahney, caused the intoxication of Bahney, ■either alone or in connection with liquor not obtained from defendant, in a sufficient number of instances to satisfy you that Bahney was habitually intoxicated by such liquor of defendant, acting alone, and also acting with such liquor of others, you should find that defendant caused the habitual intoxication of Bahney.
    “ But if the liquor of defendant, so sold or furnished,, caused, in whole or in part, the intoxication of said Bahney in a less number of instances than is required to make-him habitually intoxicated, yet, if you find that defendant’s liquor, thus sold or furnished to Bahney, caused his intoxication in one or more instances, it would be sufficient, on this second point, to authorize you to find for plaintiff. Whether the intoxication, which may have been thus caused by defendant, was in but a single instance, or occasional, or habitual, will be an important subject of consideration upon the next point, that of alleged injury to the-plaintiff’s means of support, or in assessing, should you reach that point, the amount of damages.
    “ If you find that Bahney was intoxicated in any instance or instances, as to which you are not satisfied that the defendant’s liquor, so sold or furnished to Bahney, caused the intoxication, in whole or in part, such instances of intoxication can only be considered by you upon the question, whether Bahuey was in the habit of getting intoxicated, and you should not hold defendant responsible for any injury to the plaintiff which may have resulted from such intoxication.”
    The defendant, by his counsel, excepted to the following parts of the charge:
    “ But if defendant’s liquor, so sold or furnished to Bahney during said period, in part caused the intoxication of said Bahney, the defendant would be responsible for such instance of intoxication, although liquor, which was not obtained from defendant, also, in part, caused or contributed to such instances of intoxication.”
    “And if the liquor so sold or furnished to Bahney caused the intoxication of Bahney, either alone or in connection with liquor not obtained from defendant, in a sufficient number of instances to satisfy you that Bahney was habitually intoxicated by such liquor of defendant acting alone, rand also acting with, such liquor of others, you should find that defendant caused the habitual intoxication of Bahney.”
    And the defendant, by his counsel, also then excepted to "those parts of the charge which permitted the jury to hold the defendant responsible for intoxication caused by the selling of liquor in violation of statutes other than the act of 1854, entitled “an act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.”
    And the defendant requested the court to charge as follows :
    “ If the jury award the plaintiff any amount by way of exemplary damages, they should not consider the fact, if such they find it to be, that certain of the illegal sales were made ■on Sunday.”
    
      Lynch § Day and S. Meyer § Son, for plaintiff in error.
    
      John Me Sweeney and Anson Pease, for defendant in error.
   Boynton, J.

The seventh section of the act to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18,1870 (67 Ohio L. 101), authorizes a recovery in damages for an injury to person, property, or means of support, resulting from intoxication •caused by a sale or gift of intoxicating liquors, when unlawfully made. Baker v. Beckwith, 29 Ohio St. 814.

The section, as originally enacted, gave a right of action for such injury, only when the same resulted from an unlawful sale. The civil liability created by the act was restricted, in terms, to the person who, “ by selling intoxicating liquors contraryto thisact,” shall have caused the intoxication of the person to whom sold. No liability attached to a giving away, unless done with the intent to evade the provisions of the act, and then such act of giving away was “ to be deemed and held an unlawful selling within the provisions of the act.” ■§ 9. This being the only reference made by the statute of 1854, as originally enacted, to a giving away of intoxicating liquors, and such act constituting in law an unlawful sale, it is very manifest that the legislature, by omitting from! the section as amended the words “ contrary to this act,” and in so enlarging the civil liability as to embrace a. right to recover'damages, where the injury results from an-unlawful giving away, as well as from an unlawful sale, intended to authorize a recovery in such case, without respect, to the particular statute the act of giving away violated. Otherwise, it would be found difficult, upon any just or admitted rules of construction, to maintain the necessity of establishing an illegal sale or furnishing, in order to recover the damages awarded by the statute. We are of the opinion that an injury of the kind for which the statute gives redress — that is, an injury to person, property, or-means of support, resulting from intoxication caused by a sale or giving away of intoxicating liquors,.in violation of any act providing'against it — brings the case within the amended section, and subjects the party thus violating the-statute to the civil liability thereby created.

Hence, the court did not err in directing the attention of the jury to the act of 1831, prohibiting the sale of spirituous liquors on Sunday, and to the act of 1866, making- it unlawful to furnish intoxicating liquors to a person in the-habit of getting intoxicated. But it is said that the court instructed the jury to hold the defendant below responsible-for sales made on Sunday, whether or not they found the-liquor was sold to be drank on the premises, and regardless of the fact of Bahney’s habit of getting intoxicated. We have carefully read the evidence set out in the bill of exceptions, and fail to find an instance where Bahney procured liquor on Sunday at defendant’s saloon aud carried, the same away. Therefore, the instruction, if given and wrong, was not prejudicial to the defendant. Indeed,, all the testimony relating to sales to Bahney on Sunday was quite competent as tending to show a violation of either the first or third section of the act of 1854.

It is also claimed, that the court erred in instructing the-jury, that if other persons purchased liquor of the defendant, part of which was furnished to Bahney by the defendant, Bahney being at the time intoxicated, or in the habit' of getting intoxicated, to the knowledge of the defendant, the act or acts of so furnishing were unlawful. Interpreting this instruction in the light of the testimony to which it evidently referred, we understand the court to have meant, that although the liquor was called and paid for by another, yet it being designed to be drank at the defendant’s bar, by the person calling for it, and Bahney, the defendant knowing Bahney was there to drink the same, and furnishing it for that purpose, such act of the defendant would constitute a furnishing by him to Bahney. This is in entire accordance with the ruling in The State v. Munson, 25 Ohio St. 881. The fact that the person purchasing the liquor was also guilty of furnishing the same to Bahney, does not relieve the defendant’s participation in the illegal transaction of its criminal character.

It is next contended, that proof of sales of liquor not to be drank upon the premises where sold, and of furnishing in violation of the act of 1866, was not warranted under the petition, and that the court erred in receiving the same against the objection of the defendant. To determine the validity of this objection, the ground of the action should be carefully noted. „ The substantial grievance of which the plaintiff complained was an injury to her means of support resulting from the intoxication of her husband, superinduced by the defendant’s act of furnishing him intoxicating liquors unlawfully. The petition charged the defendant with unlawfully selling and giving the liquor to Bahney, thereby causing his intoxication, with knowledge of his habit of intoxication. It was also averred, that the liquor was sold to be drank where sold. This averment was entirely unnecessary, as it was clearly immaterial whether the liquor was sold to be drank where sold or not, so long as the defendant had knowledge of Bahney’s habit of getting intoxicated. A sale of liquor to be drank upon the premises, or elsewhere, must result in intoxication and a consequent injury, before any liability arises under the statute. But where the seller has knowledge that the person buying is in the habit of getting intoxicated, a sale which violates section one of the act of 1854, also violates section three. But section three may be violated without violating section one. The question then amounts to this: Bid the admission of evidence showing sales not to be drank on the premises, clearly competent under the petition had not a particular place of drinking been specified, so affect the substantial rights of the defendant below, as to justify or require the reversal of the judgment ?

Section 131 of the code provides that, no variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon. the court may order the pleading to be amended, upon such terms as may be just.” No action, under this section, was taken or sought at the trial. Where the variance is not material within the meaning of this section, the pleading, may be amended to conform to the proof, without costs. § 132. That the evidence, at the trial, should be confined to the issue, admits of no doubt. The rule is as inflexible since as before the code, that the allegations and proof must correspond. But where the variance between the allegations and proof is such that the court would allow an amendment, under section 132, without costs, to conform the pleading to the proof, the variance can not be deemed so far material under section 131, as to justify a reversal of the judgment. We think the variance, in the present case, was of that character, and that, upon motion, an amendment striking out the allegation that the liquor was sold to be drank where sold, ought to have been allowed, without costs.

Nor do we think a failure to establish habitual intoxication would defeat the right to recover. If the jnry were satisfied, from the evidence, that the plaintiff had sustained'an injury in her means of support, in consequence of the intoxication of her husband during the period of time stated in the petition, caused by the illegal sales of the defendant, she was entitled to recover. The failure to establish habitual intoxication could only affect the measure of damages.

It is next claimed, that the court erred in charging the jury, that if the liquor so sold or furnished to Bahney, in part caused his intoxication, the defendant would be responsible for such instance of intoxication, and that if the liquor so sold or furnished caused his intoxication, either .alone or in connection with liquor not obtained from the defendant, in a sufficient number of instances to satisfy the jury that Bahney was habitually intoxicated by such liquor acting alone, or acting with such liquor of others, that they should find that the defendant caused such habitual intoxication. The objection nrged against the rule here stated, is that it holds one man responsible for the act •of another, and hence is unconstitutional.

We are satisfied that this position is entirely untenable, .and content ourselves with so declaring it, without entering upon an extended argument to establish its unsoundness. The business of the defendant, as conducted by him, being in open violation of the statute, a provision that holds him responsible for an injury to which his unlawful •conduct contributes, can not be said to be in conflict with any right guaranteed by the constitution. See Boyd v. Watt, 27 Ohio St. 259; Henshall v. Ludington, 33 Wis. 107. The weakness of the argument lies in the assumption that the seller is made or held responsible for the act of another. The act for which he is made liable is his act, voluntarily ■committed, in utter disregard of the plain provisions of the statute; an act committed with full knowledge of the risk encountered, and of the consequent liability that may follow, all of which could easily be avoided by conforming liis business to the requirements of the law.

By causing, in conjunction with others,-the injury for which the action is brought, by an act in clear violation of the statute, he becomes a joint tort-feasor, and, as at common law, is liable for the entire damages resulting from such injury.

Nor do we think there was error in refusing to charge that, “ if the jury award the plaintiff any amount by way of exemplary damages, they should not consider the fact, if such they find it to be, that certain of the illegal sales, were made on Sunday.”

The testimony tended to show that the defendant uniformly kept the back door of his saloon open on Sunday, and that the husband of the plaintiff, and others, assembled thei’e on that day, and that he purchased and drank intoxicating liquors, causing his intoxication. This was a fact properly considered as bearing upon the duty to award exemplary damages.

But we are satisfied that the damages ai’e excessive,, and therefore that the verdict is against the evidence. The period of time covered by the illegal acts of the-defendant below was about two years and six months. The verdict was $5,000. It appears from the evidence, and, indeed, the plaintiff testified, that she and her-family were well provided for during that period by her husband. Her loss consisted principally in an injury to her means of future support. At the death, of the husband she was left in comfortable circumstances. Each child — five in number — has or had a like-remedy for injury to its means of future support, resulting from the same acts of the defendant. We are not. unmindful of the fact that the case has been twice tried at no little expense; but, in view of the facts developed at-the trial, fairly dedueible from the evidence disclosed by the bill of exceptions, we think the verdict was too large by twenty-five hundred dollars. A verdict may and ought to be set aside, as against the evidence (2 S. & C. 1155, § 4), where the damages are excessive, unless *the excess is remitted. If a remittitur in the above sum is entered by the-plaintiff below the judgment will be affirmed, otherwise' reversed, and a new trial ordered.

Gilmore, J., dissented.  