¶1 (dissenting). The complaint alleges a cause of action within the statute, which provides that a wife injured in her means of support, in consequence of the intoxication of any person, shall have a right of action against any person who, by selling or giving away intoxicating liquors, shall have caused the intoxication in whole or in part of such person. (Laws of 1873, chap. 646.) On the evening of March 3,1885, the husband of the plaintiff, after having been at the saloon of the defendant, went to his place of residence, and there at some time during the night committed suicide by hanging himself. The plaintiff charges that such act of self-destruction of the husband was caused by his intoxication produced by intoxicating liquors obtained by him at the defendant’s saloon, and that in consequence of such intoxication, the plaintiff was injured in her means of support. If those propositions were supported by the evidence, the conclusion that the plaintiff was entitled to recover was warranted. ( Volans v. Owen, 74 N. Y. 526; Mead v. Stratton, 87 id. 493; Neu v. McKechnie, 95 id. 632.) The plaintiff gave evidence tending to prove that, during his life, she was dependent upon him for support, the means for which he provided by his services, and that her customary means of support were cut off by his death. The propositions whether he was intoxicated, and whether his death was caused by or was the consequence of his intoxication were questions of fact upon the evidence for the jury to determine. The plaintiff and her daughter testified that he came home intoxicated that evening twenty minutes before eleven o’clock; that at a quarter past twelve the plaintiff went to bed, leaving him lying on the lounge, and that the next morning he was *457 found hanging by the neck dead. Those questions were submitted to the jury, and their finding upon both facts must, for the purposes of this review, be deemed conclusive. He was a man forty-three years of age and, for aught that appears, was in good health, although somewhat intemperate in his habits. He had a family consisting of his wife and several children. The jury were at liberty upon the evidence to conclude that there was no motive on his part to take his life, except that arising from a reckless condition resulting from his intoxication of that night, and that it was the proximate cause of the act which produced his death. The facts that he had attempted a year before to commit suicide in the same manner, and that he at times was despondent and had threatened to take his own life, were properly matters for consideration upon the question of the cause or motive of his act of self-destruction, but they cannot, as matter of law, be said to have been controlling. These facts were for the jury to determine, and their conclusion was .permitted by the evidence. It is, however, contended by the defendant’s counsel that the evidence failed to prove that the husband obtained any intoxicating liquor at the defendant’s saloon that evening, or that he was intoxicated when he left there, and, therefore, the trial court erred in charging the jury that the plaintiff’s husband drank intoxicating liquors that evening at the defendant’s saloon, to which charge exception was taken.
¶2 This instruction by the court to the jury was founded upon the undisputed evidence that the husband drank two or three glasses of beer there at that time. The question raised by that exception is whether, without other evidence as to its quality or effect, it may be assumed that the term “ beer,” as a beverage, imports intoxicating liquor. It is well understood that all spirituous liquors are intoxicating, and that all intoxicating liquors are not spirituous. As commonly used, the term “ spirituous liquors ” does not embrace fermented liquors. The latter may or may not be strong and intoxicating. Some of it is and some of it is not so. (Nevin v. Ladue, 3 Denio, 437.) *458 The question whether the words “intoxicating liquors” embraced lager beer arose in Rau v. People (63 N. Y. 277). It was there remarked that the courts had not then been willing to take notice that lager beer was intoxicating, and, therefore, proof of the fact was essential to justify a conviction for a sale of it in violation of the statute. In the Revised Statutes the liquors which it was penal to sell at retail without license, were designated as strong or spirituous. And in People v. Wheelock (3 Park. Cr. Rep. 9) it was held that the word “ beer,” in its ordinary sense, denoted a beverage which was intoxicating, and came within the meaning of the words “ strong or spirituous liquors ” as used in the statute. That case was cited with apparent approval in Commissioners of Excise v. Taylor (21 N. Y. 173, 175), in which Nevin v. Ladue was cited and explained. And such was the view of the court in People v. Hart (24 How. 289). There has also been some legislative import given to the word “ beer ” in its use to designate a liquor used as a beverage. In the “Act to suppress intemperance, and to regulate the sale of intoxicating liquors” (Laws of 1857, chap. 628, § 5), as amended by Laws of 1873 (chap. 549, § 3), the inhibited sale was applied to strong or spirituous liquors, wines, ale or beer. The evident purpose of the statute was to regulate the sale of intoxicating liquors, and those there expressly mentioned must be deemed within the intended legislative denunciation as such liquors. They are treated by the statute as intoxicating liquors, and, therefore, within, its purpose to place the regulated restriction upon their sale and disposition for use as a beverage. And it may be presumed that such legislative action and intent were founded upon the requisite information. (Rumsey v. People, 19 N. Y. 41, 47.) It is a fact, of which notice may be taken, that there are fermented liquors and malt liquors which will produce intoxication. And, in view of the statute and cases already referred to, the conclusion is fairly required that the word “beer,” unqualifiedly applied to liquor sold or given away to be used as a beverage, presumptively imports intoxicating liquoi. It was so held in Briffitt v. State (58 Wis. 39; *45946 Am. Rep. 621). The exception to the charge of the court was, therefore, not well taken. The jury having found that the husband was intoxicated, they, were permitted also to find that the intoxication was produced in whole or in part by the beer drank at the defendant’s place, although they would have been justified, upon the evidence on the part of the defendant, to have concluded otherwise. It was wholly a question of fact for the jury. It did not appear that the husband obtained any liquor elsewhere that night, and the conclusion was warranted that he reached home about ten minutes after he left the defendant’s saloon. The question whether or not the damages were excessive was disposed of in the court below.
¶3 There seems to us to be no further question presented by any exception for consideration on this review.
¶4 The judgment should be affirmed.
¶5 Vann, Haight and Parker, JJ., concur with Brown, J.; Follett, Ch. J., and Potter, J., concur with Bradley, J.
¶6 Judgment reversed.