Dice v. Sherberneau , 152 Mich. 601 ( 1908 )

Grant, C. J.

( after stating the facts). Five errors are alleged:

(1) The court misinterpreted the statute above quoted.-

(2) In submitting to the jury the question whether the defendant Sherberneau is liable for the sale of the liquor by Curtis to Dice.

(3) The verdict is excessive.

(4) It is against the weight of the evidence.

(5) The court erred in refusing to grant a new trial.

1. The court instructed the jury that if Dice shot and killed himself while in an intoxicated condition, and that defendant Sherberneau was responsible for selling intoxicating liquor to him, which contributed to his intoxication, the defendant was liable. ■

Counsel for the defendants contend that it was incumbent upon the plaintiff to prove that the intoxication was the cause of her husband’s suicide, and that the mere fact of committing the deed while in a state of intoxication is not sufficient to sustain a verdict. Counsel seek to make a distinction between an act committed by an intoxicated person towards others in consequence of which injury results to his family or the death from exposure or drowning, or being killed in a drunken brawl while intoxicated, and the act of suicide while the person is intoxicated. No case involving suicide by an intoxicated person has before been presented to this court. In an early case under this statute, this court said:

“The statute provides as plain as the English language can state it, that this action shall lie for any injury occasioned by an intoxicated person. It is not for the injured party to produce proof, or for the jury to speculate, upon the probabilities whether the intoxication was the natural cause of the act which caused the death. The act itself by a person intoxicated fixes the liability for the damage upon the person selling or furnishing the liquor which caused the intoxication.” Brockway v. Patterson, 72 Mich. 122, 128 (1 L. R. A. 708).

In that case plaintiff’s husband and his companion left the saloon late at night in a state of intoxication. On their way home a quarrel ensued in which his companion struck Brockway and inflicted a wound in consequence of which he died.

What difference in principle is there between a case where the intoxicated person assaults and injures his wife and that in which he with suicidal intent inflicts an injury upon himself ? Or, while in a state of intoxication, he is accidentally drowned, or commits suicide by drowning F The injury to the plaintiff on account of her husband’s death, or injury so that he cannot work is the same in each case. The presumption is as great that he would not kill his wife as it is that he would not kill himself. Both acts are equally inconsistent with the conduct of a sober man. It is well in such case that the disordered mind of the drunkard be directed to his own destruction rather than to the destruction of his family.

The difficulty in proving that the deceased would not have committed suicide without the intoxication is apparent. It would substantially result in denying to a wife or children the benefit of this statute in cases of suicide. Even where a wife sought damages because her husband had committed the crime of burglary, while in a state of intoxication, the court instructed the jury that the defendant was liable if the husband formed the intent to commit the burglary by reason of the intoxication, or was so intoxicated that he was incapable of forming the intent. Dennison v. Van Wormer, 107 Mich. 461. In that case stress was laid upon the felonious intent essential to establish the crime. In such cases it is incumbent upon the wife or child to show facts and circumstances from which a jury may legitimately infer that the crime was the result of the intoxication, and not of a previously formed intent. Intoxication seldom leads to burglary and other crimes where the act implies a previously formed and intelligent criminal intent. In such cases mere proof of intoxication is not sufficient to sustain a right of action by the wife or child for damages resulting from loss of support. It is, however, a matter of common knowledge that persons long addicted to the excessive use of intoxicants — that was the. case here — do, when under the influence of liquor, attack their families and often attempt their own destruction. In such cases the fact that the act was committed while in a state of intoxication is all that the statute requires.

Where an intoxicated man killed his wife and then committed suicide and his child brought suit against the saloon keeper for damages, the court, after citing several authorities, said:

“ In those cases, as well as in others arising under the act, liability was established from the sale of liquors producing intoxication, and the act of the intoxicated person causing injury to,the plaintiff in his person, property or means of support. Those elements exist here. The cause of action is neither taken away nor mitigated because the cause of injury also constitutes a crime. The jury were not to inquire whether either ‘ the homicide or suicide were the natural, reasonable, or probable consequences of the defendant’s act.’ It is enough if while intoxicated in whole or in part by liquors sold by the defendants, those acts were committed, if by reason of them, or either of them, the plaintiff’s means of support were affected to his injury.” Neu v. McKechnie, 95 N. Y. 632.

The statute in that ca'se is the same as the statute of Michigan.

So, where the husband had formerly attempted suicide, but finally did commit it, leaving a paper saying: “ Give z»y watch to my boy,” and that his brother-in-law owed him $57, a verdict for the plaintiff based solely upon proof of intoxication and suicide was sustained. Blatz v. Rohrbach, 42 Hun (N. Y.), 402. The court there said that the question is not ordinarily susceptible of any direct proof.

We think the construction placed upon this statute by the circuit judge is correct.

3. The defendant Sherberneau gave evidence tending to show that he had instructed his regular bartender not to sell liquor to. Dice. Curtis, who sold Dice the liquor, was employed by Sherberneau in his saloon to fill the ice box, clean spittoons, etc. Sherberneau testified that he compensated him only by giving him drinks. Whether he compensated him at all or not is immaterial. The statute makes the saloonkeeper liable for the acts of his employés. Curtis was not produced as a witness. There is testimony that Curtis was generally in the saloon in the morning cleaning up, and that on one occasion, shortly before the sale to Dice, Curtis was tending bar. Neither Sherberneau nor his bartender were in the saloon at the time. The jury áre justified in inferring that a saloon keeper would not leave his place of business unattended. The saloon was open for business, and we agree with the circuit judge in saying:

“It does not stand to reason that the bartender intended to leave the saloon open' to the public with no one in charge of it.”

If a stranger had stepped into the saloon and found only Curtis there, apparently in charge of the saloon, and Curtis had waited upon him, clearly the defendant would have been liable. There was evidence to sustain the verdict upon this point.

3. The question of an excessive verdict cannot now be considered, there having been no motion for a new trial made in the court below raising this point. Brockmiller v. Industrial Works, 148 Mich. 642, and authorities there cited.

The 4th and 5th points may be considered together. The questions of law raised upon the motion are above decided. We cannot say that the verdict is so clearly against the weight of the evidence as to justify us in granting a new trial.

The evidence as to the degree of intoxication was in sharp conflict. The judge in his opinion on the motion for a new trial, after carefully reviewing the evidence, said:

“ It became a question of fact for the jury, and I think • they were properly justified, from all the testimony, in reaching the conclusion that he was intoxicated at the time he shot himself.”

We concur in this view.

The judgment is affirmed.

Montgomery, Carpenter, and McAlvay, JJ., concurred. Blair, J., concurred in the result.