Moore v. Wingerter

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 244*—when evidence justifies instruction as to exemplary damages. Evidence in an action by a wife to recover under section 9 of the Dramshop Act (J. & A. 1(4609), examined and held to justify an instruction given for plaintiff submitting the question of exemplary damages to the jury.</p> <p>2. Intoxicating liquors, § 214*—when evidence as to other sales properly excluded. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 114609),.it is proper to exclude evidence as to the names of other saloon keepers who had sold intoxicating liquors to plaintiff’s husband.</p> <p>3. Intoxicating liquors, § 216*—when evidence of sales by others not a defense. In an action by a wife under section 9 of the Dram-shop Act (J. & A. ¶ 4609), to recover for sales to plaintiff’s husband, it is no defense that others had sold intoxicating liquors to the husband and caused or contributed to his intoxication.</p> <p>4. Intoxicating liquors, § 216*—when evidence of habitual drunkenness not a defense. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), it is no defense that plaintiff’s husband, for the sales to whom of intoxicating liquors the action is brought, was an habitual drunkard before the five years covered by the suit.</p> <p>5. Intoxicating liquors, § 181*—when presence of plaintiff at time of sale not a defense. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover for sales of intoxicants to her husband, it is not a defense that she was present at times when such sales were made to the husband and did not protest then against it, where evidence shows that she had theretofore protested without avail, ,was present unwillingly when they were made and had taken steps to notify defendant not to sell liquor to the husband.</p> <p>6. Intoxicating liquors, § 249*—when instruction as to sales by others proper. In an action by a wife under section 9 of the Dram-shop Act (J. & A. ¶ 14609), to recover damages for injury to her means of support and property by the sale and gift of intoxicating liquor to her husband, an instruction given at plaintiff’s request which after submitting to the jury the question whether the husband duringi the five years covered by the action became an habitual drunkard, and whether within such time defendant sold and delivered to him intoxicating liquor, and whether the husband drank the liquor, and whether the drinking, thereof contributed-to his becoming an habitual drunkard, and whether by. reason of such habitual drunkenness the plaintiff was injured in her means of support, then told the jury that if they further believed from the evidence that during the period other persons- sold and delivered intoxicants to the husband and that he drank them and that the drinking thereof contributed to his becoming an habitual drunkard, yet under the law defendant would be liable for the acts of all other persons who contributed to such habitual intoxication by selling and delivering intoxicating liquors to the husband, is proper.</p> <p>7. Intoxicating liquors, § 206*—when instruction as to burden of proof properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injury to her means of support and property by the sale of intoxicating liquor to her husband, an instruction to the effect that if the husband became intoxicated by liquor obtained from others and by reason thereof plaintiff was injured in person, property or. means of support, and if defendant sold intoxicating liquors to the husband and he thereby became intoxicated, then before plaintiff could recover she must prove that the intoxication caused by defendant contributed to the injury to her person, property or means of support, is properly refused as placing upon her the burden of proving an injury from the use of defendant’s liquor separate from that produced from the .liquor sold the husband by others.</p> <p>8. Intoxicating liquors, § 249*—when instruction not based on evidence properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injuries to her means of support and property by the sale of intoxicating liquor to her husband, an instruction on the basis that the liquor sold by defendant was not intoxicating and that defendant mixed it with other liquors and thereby became intoxicated is properly refused where there was no proof on which to base such an instruction.</p> <p>9. Intoxicating Liquors, § 246*—when, instruction as to mitigation of damages properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injury to her means of support and property by the sale of intoxicating liquors to her husband, an instruction intended to cause the jury to consider the proof that the husband became intoxicated by liquors sold him by others in mitigation of damages is properly refused.</p> <p>10. Intoxicating liquors, § 246*—when instruction as to mitigation of damages properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injury to her means of support and property by the sale of intoxicating liquor to her husband, an instruction which assumes that there was evidence that plaintiff purchased from defendant intoxicating liquors for her husband and that such fact might be considered in mitigation of damages is properly refused where there was no evidence upon which to base it.</p> <p>11. Intoxicating liquors, § 249*—when ruling of court on instructions not ground for reversal. Rulings on instructions in an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), examined and held not ground for reversal.</p>