Minot v. Doherty , 203 Mass. 37 ( 1909 )

Loring, J.

1. The defendant urges in support of his exception to the refusal of the judge to give the eighth ruling asked for that “ the defendant would not be liable if an habitual drunkard, to the formation of whose habits of intoxication the defendant had in whole or in part contributed, committed an assault while perfectly sober.” That is true. That was decided to be law in Bryant v. Tidgewell, 133 Mass. 86. But it was laid down in that case that if a man who is habitually drunk for a specified period assaults his wife at that time, a defendant who by selling him liquor had caused that drunkenness in whole or in part would be liable if his intoxication at that time was the cause of the assault. That case established the distinction be.tween causing a husband to form habits of drunkenness by selling liquor to him and causing him to be habitually drunk during a specified period by selling liquor to him.

The defendant has also argued that there was no evidence that the husband was in fact intoxicated at the time of the assault. But we are of opinion that from the evidence set forth in the bill of exceptions the jury were warranted in finding that he was intoxicated at that time. Moreover the bill of exceptions does not purport to set forth all the evidence. Further, although the whole charge is not given, it affirmatively appears that the presiding judge instructed the jury that they must find that fact. He told them that he had been asked to give them this instruction : “ The burden is upon the plaintiff to show that the intoxication of the husband at the time it is alleged that he struck and injured her was caused in whole or in part by liquors sold or given him by the defendant.” As to this he told the jury: “ I have already given you that and I repeat it.”

2. In explaining to the jury that the defendant would not be liable for habits of intoxication formed by the husband before any liquor was sold to him by the defendant, the judge said that he would be liable if “ those habits were continued afterwards and were continued afterwards on account of the acts of the defendant in selling him liquor in whole or in part.” If this had stood alone the charge would have been erroneous for the same reason that the charge in Bryant v. Tidgewell, 133 Mass. 86, was held to be wrong. But this was an inaccurate statement used by the judge in pointing out that the defendant was not liable if the husband had become addicted to drunkenness before any liquor was sold to him by the defendant. When the judge later on in his charge instructed the jury as to what they must find to bring in a verdict for the plaintiff, this inaccuracy was cured. They were then told in substance that they must find that the assault was caused by his being in a state of habitual drunkenness at the time, and that this state of habitual drunkenness had been caused in whole or in part by liquor sold by the defendant.

3. The eleventh request could not be given. The pain in labor of a woman who by reason of an assault and battery upon her brings forth a dead child when she is seven months gone in pregnancy, may be found to be greater than the pain in labor of a woman “ who remembereth no more her anguish for joy that a man is born into the world.”

Exceptions overruled.