
    Mary J. Mulford v. Abraham H. Clewell.
    1. It is no ground of error, that the court ordered stricken from the plaintiff's petition a count containing no cause of action, or to reject testimony tending to prove the same.
    2. Where the court during the trial, and before the evidence is closed, erroneously strikes from the petition one of the causes of action therein contained, the error is not emed by the court instructing the jury, after the close of the testimony, to consider the matter contained in the count so stricken out, and the evidence applicable thereto.
    3. Under the acts to provide against the evils resulting from the sale of intoxicating liquors, (S. & O. 1431; and 67 O. L. 101,) an action against the vendor for injuries to the “ person ” of the plaintiff, occasioned by the drunkenness of the vendee, cannot be sustained without showing an assault, or some actual violence, or some physical injury to the person or the health; and it is not sufficient to show mere mental anguish, disgrace, or a loss of society or companionship.
    4. In order to sustain her action under said statutes for injury to her “ means of support,” it is not necessary for the wife to show that she has been at any time, in whole or in part, without present means of support. It is enough that the means of her future support have been cut off, or diminished below what is reasonable and competent for a person in her station in life, and below what they otherwise would have been. And the rule of damage in such case should be, not the amount of loss occasioned to the husband's estate, but the diminution, if any, thereby resulting to her means of present and future support.
    5. In an action under said statutes for injury to her “property,” the wife may recover against the vendor of the liquor damages sustained by her by reason of the sale of her chattels by the husband, without first demanding the chattels of the vendee, or notifying him that she claims them to be her property.
    
      6. The liability of the defendant, in actions under these statutes, for injury in tlie “ means of support,” is not confined to cases of injury resulting from drunkenness, immediately, and during its continuance, but extends as well to cases where the injury results from insanity, sickness or inability, induced by intoxication.
    Error to the court of common pleas of Crawford county.
    The original action was brought on the 1st of April, 1871, by the plaintiff in error, a married woman, against the defendant in error, under the statutes of May 1st, 1854 (S. & C. Stat. 1431), and April 18, 1870, (67 O. L. 101), to recover damages resulting from the drunkenness of her husband, caused by intoxicating- liquors sold to him by the defendant.
    The petition contains three causes of.action, which are separately stated and numbered. In each, it is charged that the defendant had been guilty of a series of unlawful saler of liquor to the plaintiff's husband, covering a period of some four years next preceding the commencement of the suit, her husband being an habitual drunkard, and the defendant knowing him to be such. In the first count of her petition she says, that by her husband's said drunkenness she has suffered injury in her “ property,” which consisted of a hor.se, and one hundred dollars in money. She charges that the husband squandered the money in dissipation, and that he sold and delivered the horse to the defendant, in payment of liquor bills.
    In the second count she charges that she was injured in her “ means of support.” She alleges that prior to his drunkenness her husband had ample means, which had all been squandered and lost by his said drunkenness ; that by the same cause he has become physically unable to labor, and utterly incapacitated to do any business for the maintainance of himself and family; and that for the last nine months she has had no means of support, except what she derived from the charity of her neighbors, and that she is now without any means of support whatever.
    The third count charges that plaintiff has been injured in her “person,” in this, that her husband at times became delirious, wild and dangerous, and she has been compelled to nurse and attend upon him, and has been put in much fear, and finally compelled to abandon his house, on account of his bad conduct and disagreeable society. But she complains of no actual violence to her person.
    The answer admits the marriage of the plaintiff, but denies all the other allegations of the petition.
    On motion of the defendant, after the filing of his answer, the second and third counts of the petition were stricken out. By the journal entries in the record it appears that these two counts were stricken out before the trial of the cause, and that the parties went to trial upon the first count alone; but by a bill of exceptions afterward taken in the cause, it seems that these counts were stricken out during the trial. No reason seems to have been given for striking them out. To the order of the court striking out these counts of the petition the plaintiff excepted.
    On the trial evidence was given to the jury by the plaintiff, tending to prove all the averments of the first and second counts of the petition. The plaintiff also offered to give evidence tending to prove the averments of the third count; but the evidence so offered was objected toby the defendant,, and was excluded by the court; to which order of the court the plaintiff excepted.
    At the close of the evidence the court instructed the jury, among other things, as follows : “ Plaintiffs petition alleges that she has thus been injured in her person, her property, and her means of support, and that such injuries were occasioned by her husband, when thus intoxicated.”
    The court then recited the provisions of the act of May, 1st, 1854, and the act of April 18, 1870, amendatory thereof, and explained to the jury the difference between said acts, namely, that under the former act the defendant would only be liable for the consequences of illegal sales of liquor, while under the latter act he would be liable for legal as well as illegal sales; and told the jury that as to sales of liquor, made prior to July, 4th, 1870, the case would be governed by the act of 1854; and only as to sales made after the 4th of July, 1870, would it be governed by the act of April 18,. 1870. The court then proceeded to further instruct the jury as follows:
    “ The proof, in order to entitle the plaintiff to recover, must show an injury: 1. To her person; 2d. To her property ; or 3d. To her means of support. You will therefore inquire — was she injured in her person : * * * * * Mortification, and sorrow, and loss of his [the husband's] society, is not enough. Her mental agony, mortification, and loss of her husband’s society, is her misfortune, for which she has no remedy under this law. If she had been attacked by her drunken husbaud, and injured in her person by his violence, she could recover.” *****
    “ Next: is she injured as to her property. Prima facie, the wife does not own property in the possession of her husband. It is presumed to belong to the husband .” * * * * u The court say to you, if the husbaud sold the defendant the horse, without the wife’s consent, he conveyed no title. And if she knew it, it was her duty to so tell the purchaser in a reasonable time, and notify him to return it. * * * * She should take steps to regain the property, and if she omitted to do so, and omitted to notify the defendant, she would acquiesce, and the sale becomes valid, and she cannot recover here or otherwise, ***** but if the husband takes possession of the wife’s property, and puts it out of her reach, she might recover,” &c.
    “Next: In regard to her means of support. What were they ? That you will fiud from the evidence. When did the insufficiency of her support arise ? She has no legal, right to complain if he squanders his own property. There is another statute for cases like that. She may procure the appomtmeut of a guardian for him. * * * * This is a civil action. She cannot complain or obtain relief in this kind of action against his squandering his own property. You will, therefore, find when her means of support ceased. '* * * * If her means of support were cut short by Ms intoxication, then she is injured. * * * * You will, therefore, inquire who caused those intoxications of plaintiff’s husband after the time you find the support to have ceased. * * * * Such sale of liquor by defendant must go directly to such injury. * * * * The injury must have been the immediate result of the intoxication. * * * It must be an injury while her husband was so intoxicated. * * * * It is for you to inquire what that injury was. * * * # How much time did he lose ? * * * and did the plaintiff suffer for means of support in consequence ? * * * # ;por jf glue had plenty during that time, and was not in any manner deprived of her means of support, she was not injured. * * * * The plaintiff claims that if defendant, by a series of sales of liquor, caused the husband to be used up, or impaired, the defendant putting him in that condition makes himself liable. You can’t charge the defendant with the husband’s disability caused before his support for his wife failed. If the husband was used up before the property was used up, then defendant is not liable. * # * * It must be the immediate effect of intoxication. If the effect is immediately produced by the husband’s intoxication, not his insanity or imbecility contracted, then such intoxication, if caused at the time by defendant’s liquors, entitles the wife to recover. Then she has made a jprima fade case.”
    To these instructions the plaintiff excepted, asking the court at the same time to give some counter instructions, which were refused by the court.
    The jury returned a verdict for the defendant, and judgment was rendered accordingly. To reverse this judgment is the object of the present petition in error. The assignments of error relied upon are : 1. The striking out by the court of the second and third counts of the petition. 2. The rejection of evidence offered under the third count. 3. The court misdirected the jury.
    
      8. M. Harris and F. B. .Finley for plaintiff in error.
    
      A. M. Jackson for defendant in error.
   Welch, C. J.

Some mistake probably occurred in getting up the record in this cause. It shows that the second and third grounds of action were stricken from the petition before the trials and again stricken out upon the trial, and without assigning, in either case, any reason for the order, and yet the court afterward, in its charge to the jury, proceeds upon the theory that these counts were still in the petition.

The ground on which these counts were stricken out must have been, that neither of them was supposed to set forth a good cause of action. If that be true, then there was no error in striking them out. As to the third count, we think the action of the court is sustainable on that ground. It alleges no actual violence by the husband, no physical injury to the person or health of the wife. It merely charges that she has suffered mental anguish, disgrace, and loss of society or companionship. This is not sufficient. It does not amount to “ injury to the person,” within the meaning of the statute. We think, therefore, that the court did not err, to the prejudice of the plaintiff, either in striking the third count from her petition, or in rejecting evidence offered to sustain it.

In striking out the second count, which aptly and plainly charges an injury to the plaintiff in her “ means of support,” we think the court erred. Nor was the error cured by the court subsequently charging the jury to consider the matters set up in said count, and the evidence given thereunder. After these counts were stricken out, we must presume that the plaintiff confined her evidence to the first count, which alone was then in issue, and that she was thus prevented, in whole or in part, from adducing evidence under the second count.

Did the court err in its instructions to the jury ? We think it did, in three particulars.

We think the court erred in its exposition of the law as regards the injury to the plaintiff’s “property.” If the drunken husband wrongfully took, or wrongfully converted the wife’s chattels, the “injury” thereto, which the statute speaks of, was complete, and she might sue the vendor of the liquor at once, without any previous demand or notice. Such demand or notice might be necessary in an action by the wife against the vendee of the chattel, for his conversion of the property. But the action under these statutes is not brought for the vendee’s conversion of the property. It is brought for the husband’s conversion, committed while under intoxication effected by the defendant. It was enough that the husband knew the property to be hers, and knew that she claimed it as such. The object of the statute is to make the liquor seller liable for the husband’s wrongful act. The wrongful act for which the defendant was sued was not the conversion of the property, but the sale of the liquor.

We think also that the court erred in its charge to the jury, in regard to the wife’s “ means of support.” In order to sustain her action under these statutes for injury to her means of support, it is by no means necessary she should show that she has actually been without support, or been, at any time, in whole or in part, deprived of means of support. Means of support relate to the future as well as to the present. It is enough if she show that the sources of her future support have been cut off, or diminished below what is reasonable and competent for a person in her station in life, and below what they otherwise would have been. Of course the damages in such case would not be commensurate with the amount of loss or injury to the husband’s estate, but merely the diminution, if any, thereby resulting to the wife’s means of present and future support. What those damages are, in any given case, the legislature have seen proper to leave in these broad terms to a jury to determine. A wife’s means of support — her reasonable alimony or allowance for maintenance — is a matter quite well known to the law ; and there is no good reason why the legislature should not submit the question of its amount and value, as it seems to have done by these statutes, to the determination of a jury, under the instruction and supei-vision of the court.

It seems to us, also, that the court erred in saying to the jury, as it did, that in order to maintain a case under these statutes, it must appear that the injury resulted directly and immediately from the drunkenness, and during its continuance, and not from insanity, sickness or inability, induced by intoxication. The health of the husband, and his ability to labor, are often, to a greater or less extent, the means of the wife’s support. In many cases, to destroy these, is to destroy her means of support. To take away the husband’s power to accumulate means of future support for his wife, is, within the meaning of the law, to injure her in her means of support.

Judgment reversed, and cause remanded for further proceedings.

White, Dat, McIlvaine and'West, JJ., concurred.  