
    Kirchner v. Myers.
    1. In an action under the act of 1870 (67 Ohio U. 102), to recover damages to means of support by reason of intoxication caused by liquors alleged to have been sold continuously, during a period of three years, to a person in the habit of getting intoxicated, the defendant may offer evidence to show that, during the same period, such person became intoxicated by liquors which he purchased of other persons.
    2. Under said act of 1870, for injury to means of support in consequence of intoxication which caused the death of the intoxicated person, damages resulting from the death can not be recovered. Davis v. Justice, 31 Ohio St. 359, approved.
    Error to the District Court of Hardin county.
    On January 3, 1874, Cynthia Myers brought suit in the Court of Common Pleas of Hardin county, against William, John, and Charles Kirchner. In her petition she states that Frederick Myers was her husband, and had been such for twelve years at the time of his death; that she was dependent on his labor for support; that for more than three years prior to November 15, 1873, and throughout and during all of said three years, the defendants sold, gave, and furnished intoxicating liquors to said Frederick, to be drank, and which were drank by him at the place where sold, in Kenton, in violation' of the liquor law of 1854 and its amendments, said Frederick being then and there a person in tlm habit of getting intoxicated, as they well knew, thereby causing said Frederick frequently to become intoxicated; that by reason of the intoxications thus caused, said Frederick was frequently made sick, and the plaintiff was compelled to nurse him and take care of him; “ that, by reason of giving, selling, and furnishing said liquors, as aforesaid, by said defendants to said Frederick Myers, a sickness was superinduced and brought upon said Frederick Myers which caused his death;” and that, by reason of said acts of the defendants, the plaintiff was. injured in her means of support, etc., and she claimed six thousand dollars damages.
    The answer was a general denial.
    The case was tried to a jury, at the October term, 1875, a verdict for the plaintiff for $550 was rendered, a motion for a new trial was overruled, judgment was entered on the verdict, and a bill of exceptions was allowed.
    The Kirchners prosecuted error in the district court, where the judgment was affirmed, and on leave of this court a petition in error has been filed to reverse the judgments of both courts, the errors assigned in the district court being relied on here.
    On the trial of the cause in the court of common pleas, the plaintiff' below gave evidence tending to prove the issue on her part; “and that on the said 15th of November, 1873, her said husband purchased a half pint of whisky of the defendants, which, when he returned home about half past one o’clock next morning, was all gone, except about one inch thereof in the bottle; that on his return, said morning, he was wounded, as if by a club, on the collar-bone and head, and very wet and muddy; that pneumonia immediately set in, aggravated by said wounds and habit of intoxication, of which pneumonia he died on November 23,1873.”
    The defendants below offered to prove, as matter proper for the consideration of the jury, that Myers was, during the three years mentioned in the petition, in the habit of buying liquor and getting drunk at other saloons in Kenton, kept and owned by other persons; but the court excluded the evidence, and the defendants excepted. They also offered as evidence two petitions filed in the court of common pleas of Hardin county, by the plaintiff below— one against Price & Brush, and the other against one Sorgen, saloon-keepers in Kenton — in which petitions the defendants therein are severally charged with having sold to Myers intoxicating liquors during a period of eight months-next preceding November 15, 1873. In other respects the petitions were substantially the same as the petition in the action against the Kirchners. The court, on objection, rejected the petitions, and the defendants excepted.
    The evidence being concluded, the defendants below, by their counsel, requested the court to charge the jury, among other things, as follows: '
    “ 1. As the law gives a remedy to the wife for the wrongful death of her husband,'and this action is not brought for that, you can not take such death into consideration, excepting only as it affected her means of support up to the commencement of this action.
    “ 2. If you find that the action was commenced by the plaintiff after the death of her husband, under the act of the general assembly passed May 1, 1854, and the acts amendatory thereto, before the plaintiff’ is entitled to recover damages for impairing her future support, by reason of the unlawful selling of the liquors by the defendants to deceased, you must find that his death was caused, in whole or in part, by said unlawful selling.”
    The court refused to charge as requested, hut did charge as follows: “ The rule of damages is the diminution resulting to her present and future support by reason of the intoxication. And in order to settle this, you must consider all the evidence and circumstances in this particular case, and determine it on its own facts, fully compensating the plaintiff' as far as money can do it. You may also allow exemplary damages if you think the case requires and justifies it.” Again: “ If you find the defendants are guilty of the charges in the petition, then you will find a verdict for the plaintiff, and the amount must fully compensate her for all she has lost in her means of support, both present and future.” The charge contained no direct statement as to the death of Frederick Myers, or the effect of his death on the question of damages, nor did it contain any allusion to the matter, except as above stated.
    
      W. L. Walker and Kernan Kernan, for plaintiff's in error :
    •Counsel claimed, among other things, that the damages should have been limited to the time of bringing the suit, and cited 21 Ohio St. 191; Comyn’s Digest, Damages; Hamilton v. Veene, 2 Saund. 196; Duncan v. Markley, 1 Harper, 276; Powers v. Ware, 4 Pick. 106; Pierce v. Woodward, 6 Pick. 206; Thayer v. Brooks, 17 Ohio, 489.
    
      W. & J. H. Lawrence, for defendant in error :
    I. It is not error to exclude from the jury other petitions by plaintiff below, pending against other parties in the same court, claiming damages by reason of sales of intoxicating drinks during a portion of the time covered by this action.
    1. The evidence would not tend to disprove the sales here complained of, and hence is not matter of defense. It is not claimed as defense.
    2. It was not matter in mitigation of damages.
    
      a. It is no mitigation that others contributed to the injuries here complained of. Woodheather v. Risley, 38 Iowa, 486; Fountain v. Draper, 49 Ind. 441; Hackett v. Smelsey, 77 Ill. 109; Emery v. Addis, 2 Chicago Legal News, 336 ; Stone v. Dickinson, 5 Allen, 29 ; Jack v. Hudnall, 25 Ohio St. 255 ; Boyd v. Watt, 27 Ohio St. 259; 1 Bishop Crim. Law, 630-642; Jewell v. Wanshena, 8 Chicago Legal News, 324; Kearney v. Fitzgerald, Iowa Sup. Court, June, 1876. See a monograph by John D. Lawson, St. Louis, 1877, “The Civil Remedy for Injuries from Sale of Intoxicating Liquors,” 24. Mason v. Shay, 1 Am. Law Record, 554; Miller v. Patterson, 31 Ohio St. 419; Roth v. Eppy, 16 Am. Law Register (25 O. S.), 111.
    
      b. The evidence did not even tend to show that other parties contributed to the same injury here complained of; it was not proposed to make such proof. Stull v. Wilcox, 2 Ohio St. 569.
    
      c. The necessary effect of the evidence would be to mislead the jury, and reduce the verdict, by reason of the other claims on which nothing might ever be made.
    , II. The charge to the jury carefully limited the plaintiffs’ right to damages, to the injury to her means of support, and exemplary damages.
    1. There is nothing in it which sanctions damages for “ violence to feelings,” or “ damages for the death of the husband.” “ Violence to feelings ” are within the statute, since it gives an action to all who may be “ injured in person.” Peterson v. Knoble, 35 Wis. 80 ; Wightman v. Devere, 33 Wis. 570. But if this were not so, “ violence to feelings” may be considered to justify exemplary damages; Freese v. Tripp, 6 Chicago Legal News, 330; Roth v. Eppy, 16 Am. Law Register, 111 (O. S. vol. 25), Feb. 1877.
    2. The omission to charge as requested is not error, for two reasons:
    
      a. The charge given covered all that was material, and substantially all that was proper, in the charges, as asked. Stewart v. State, 1 Ohio St. 66; Bond v. State, 23 Ohio St. 349.
    
      b. The first five points asked by defendant, as an entirety, were properly rejected, because they were wrong in limiting damages to the loss in means of support, thereby excluding exemplary damages. Act May 1, 1854, § 7; 4 Curwen, 2671; French v. Millard, 2 Ohio St. 44; Walker v. Devlen, 2 Ohio St. 593; Eckles v. State, 20 Ohio St. 515; Adams v. State, 25 Ohio St. 584; 29 Ohio St. 512; Serviss v. Stockstill, 30 Ohio St. 418; Insurance Co. v. Tobin, 32 Ohio St.
    III. The rule of damages given to the jury was proper.
    1. The authorities show this. Mulford v. Clewell, 21 Ohio St. 191; Schneider v. Hosier, 21 Ohio St. 98-112; Mason v. Shay, 1 Am. Law Record, 554; Schaffner v. State, 8 Ohio St. 643; Strader v. Mullane, 17 Ohio St. 626; Fuller v. State, 12 Ohio St. 433; Wrightman v. Devere, 33 Wis. 570; Woolheather v. Risley, 38 Iowa, 189; Hackett v. Smelsey, 77 Ill. 109; Bullard v. Briggs, 7 Pick. 533; Buzick v. Buzick, 8 St. Louis Cent. Law Jour. 786; Emory v. Addis, 6 Chicago Legal News, 335; Jackson v. Brookins, 5 Hun, 533; Krach v. Heihman, 4 Cent. Law Jour. 233; Schmidt v. Mitchell, Sup. Ct. Ill. 1877.
    2. The charge limited damages to “ means of present and, future support, by reason, of intoxication.” This did not include damages by reason of death; it excluded this, since intoxication does not operate after death.- The charge given was sufficiently explicit. It did not include any loss of means of support after death.
    3. If it did, it can be sustained. Jackson v. Brookins, 5 Hun, 533.
    The particular injuries specified in the statute must be compensated, where those injuries result as a direct conse'quence of death produced by the unlawful intoxication. A .judgment for this particular class-of injuries, under this statute, would be a bar to an action for the same injuries under the act of March 25, 1851. 2 Curwen, 1673; Davis v. Justice, 31 Ohio St. 365. This case holds that general damages, or all damages resulting from death, can not be recovered. But it does not hold that so far as death cuts off “ means of support,” no damages can be recovered for that.
    4. The fourth charge asked was properly refused, for the two reasons ” heretofore shown.
    IY. The court properly refused to charge that the jury “ must find that the death was caused, in whole or in part, by the unlawful selling, before the plaintiff is entitled to recover damages for impairing her future support.”
    These charges, as asked, are not very clear.
    1. The authorities cited show that the loss of future support — support lost after the sale — may be recovered for, where no death has occurred. Mulford v. Clewell, 21 Ohio St. 191.
    2. The court did not charge, as authorized by Jackson v. Brookins, 5 Hun, 533, that damages to support after death occasioned by sales, might be recovered.
    
      John D. King, also, for defendant in error :
    Act of 1870, 67 Ohio L. 102; 21 Ohio St. 103; Boyd v. Watt, 27 Ohio St. 259 ; 6 Ohio, 23.
   Okey, J.

The charge in the petition is that the defendants below had, in Kenton, during three years next preceding November 15-, 1873, continuously sold to Frederick Myers intoxicating liquors,, thereby causing him frequently to become intoxicated, whereby the plaintiff below was injured in her means of support. The defendants offered evidence tending to prove that, during a portion of that time, Myers had repeatedly purchased liquor of other persons in Kenton, and become intoxicated thereon.. They also offered the written admissions of the plaintiff below, tending to.prove the same fact. But the court excluded the evidence, both oral and written, and in this, we think,, erred.

Under the act of 1854, as amended in 1870 (67 Ohio L. 102), which governed this case, it was provided that the injured party should “ have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by giving or selling intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons.” No doubt, under this act, if two sellers, though wholly independent of each other, contributed, by their unlawful sales, to the same intoxication, whether of long or short duration, a wife injured thereby m her means of support, could recover damages for the whole injury, in a joint action against them ; and she might recover against either or both of them, in a separate action or actions, the same amount of damages, though she could have but one satisfaction. But this did not render a party liable for the independent, unlawful act of another seller, having no such connection with any unlawful sale he may have made.

Evidence having been given tending to prove that for three years immediately preceding November 15,1873, the-defendants continuously sold to Myers intoxicating liquors, upon which he frequently became intoxicated, the jury might readily infer that the defendants caused all the injury which the plaintiff below sustained by reason of the intoxication of her husband. Surely, to rebut such inference, the defendants should have been permitted to offer evidence that, during the same time, Myers purchased liquor and became intoxicated at other saloons in Kenton. It would have been for the jury to say, whether the sales at other saloons had simply contributed to or increased the intoxication produced by liquors sold by the defendants below, in which case the evidence could not have aided them ; or whether, in fact, the liquors procured of persons other than the defendants caused independent intoxications, to which the defendants below did not contribute, in which case the evidence should have been considered in their favor, and have had such weight as the jury might think, under the circumstances, it was entitled to receive. And the admissibility of such evidence is more apparent when it is remembered that the statute places this action on the ground of a suit in tort involving fraud or malice, as to the right of the jury to include in their verdict exemplary damages; for the amount of such damages can only be properly determined on the fullest consideration of the real cause or causes of the injury, with the attending circumstances. See Engleken v. Webber, 47 Iowa, 558.

Miller v. Patterson, 31 Ohio St. 419, in no way militates against, but supports this conclusion. Th ere separate actions had been brought by the same person against different defendants, the petitions being, in form, identical; and it was held, “ the fact that the plaintiff in one case received a sum of money in satisfaction and discharge of her cause of action, was no defense in the other case, if, in fact, the intoxications were separate and distinct.”

We are of opinion, furthermore, that the court erred in failing to charge the jury, and in the charge given, as to the effect of the death of Myers on the amount of recovery. The case was tried before Davis v. Justice, 31 Ohio St. 359, was decided, and hence, in view of the difficult question presented, it is not strange that court and counsel fell into error. It was held in Davis v. Justice, that in an action under the above mentioned act of 1870, for injury to means of support in consequence of intoxication which caused the death of the intoxicated person, damages resulting from the death can not be recovered. True, the request made in this case did not contain a correct statement of the law, and the court properly refused to charge as requested. It is also true that the failure to charge a correct proposition of law, pertinent to the ease, will not, ordinarily, afford ground of reversal, if there was no request to charge such proposition. But here the attention of the court was directed by counsel to the effect of death on the amount of the recovery, and the response was, not merely a refusal to charge as requested, but a statement to the jury that if the plaintiff was entitled to a verdict, “ the amount must fully compensate her for all she has lost in her means of support, both present and future;” and no other allusion was made to the effect of death on the amount of the recovery. The jury were authorized, under such a charge, to take into consideration support he might have rendered if death had not resulted in the way stated, which, .as we have seen, is opposed to Davis v. Justice; and hence the charge was not merely misleading, but, under the circumstances, erroneous.

As already stated, the question involved in Davis v. Justice was not free from difficulty. Cases may be found in seeming opposition to that decision. Rafferty v. Buckman, 46 Iowa, 195; Jackson v. Brockins, 5 Hun, 530; Quain v. Russell, 8 Hun, 319; Schroeder v. Crawford, 8 Reporter, 171. On the other hand, it is not without support. Krach v. Heilman, 53 Indiana, 517; Collier v. Early, 54 Indiana, 559 ; Backes v. Dant, 55 Indiana, 181; Shugart v. Egan, 88 Illinois, 56; Brookmire v. Monaghan, 15 Hun, 16, following Hayes v. Phelan, 4 Hun, 733; 5 lb. 335. But, independently of such support, we are satisfied with Davis v. Justice for the reasons stated in the opinion of MeIlvaine, J., concurred in by a majority of the court; and we adhere to that decision.

In the case of Davis v. Justice, it appeared that the plaintiff’s husbaud was run over by a train of cars while intoxicated, and instantly killed. In this case, the evidence tended to show that the intoxication led to exposure, which, together with the enfeebled condition of the system, caused by intemperance, induced pneumonia, which occasioned death. To such a case, and perhaps, indeed, to Davis v. Justice, the principal reason given for the judgment in Krach v. Heilman, supra, where the facts were analogous in this respect to the case under consideration, would also seem to be applicable. There the right to recover, which was based on a statute in terms like our act of 1870, was denied by the application of the maxim, causa próxima non remota spectatur. To the same effect is Shugart v. Egan, supra.

Judgment reversed, and cause remanded for a new trial.

Boynton, J.,

dissented from the second proposition of the syllabus.  