Bryant v. Tidgewell

Field, J. The first exception was submitted without argument by the defendant. The declaration alleges “habitual intoxication,” and it was open to the plaintiff to prove sales on more than two occasions. As to the second exception, the credibility of the witness had not been attacked by the plaintiff. It appears that the witness was one of the defendants, and therefore directly interested in the suit. The evidence offered by the other defendant, that the witness was “ without any means to satisfy any judgment which might be obtained against her in this cause,” had no tendency to show that she was not actually interested as defendant in the suit. Whether evidence of the kind offered ought ever to be received to rebut evidence of interest or bias, is at least doubtful, and it may perhaps depend upon the nature of the evidence it is offered to rebut; but we think it ought never to be received, in the first instance, when offered by the party who calls the witness, for the purpose of supporting his testimony ; and that the court did right in excluding it. The first instruction asked for was properly modified by the court. The St. of 1879, c. 297, gives a right of action against any person who shall have caused the intoxication “ in whole or in part.” The second instruction asked for was also rightly refused. If the defendants caused the intoxication in whole or in part, then by the terms of the statute they are liable to the wife, if she be injured in person or property or means of support “ in consequence of the intoxication,” for all damages sustained; and the statute does not attempt to apportion the damages when persons other than the defendants have contributed to the intoxication. The instruction given in place of the second instruction asked for, we think, does not correctly state the law. Under this instruction, the jury may have found that the defendants contrib-. uted to the formation of habits of intoxication, although they did not cause the intoxication in whole or in part of which the [91] plaintiff in her declaration complained. The defendants may have contributed to the formation of habits of intoxication by _ the plaintiff’s husband, without ever having proximately, in whole or in part, caused him to become intoxicated. All the intoxicat-; ing liquors the defendants ever sold the plaintiff’s husband may have been sold before she became his wife, and yet the defendants may have thus contributed to the formation of habits of intoxication, and the actual intoxication of which the plaintiff complains may have been wholly caused by other persons than the defendants. Whether the intoxication be “ habitual or otherwise,” the defendants to be liable must in whole or in part have actually caused the intoxication, and the injuries must have been received in consequence of such intoxication, or from a person whose intoxication was thus caused by the defendants. A habit of becoming intoxicated is distinguishable from actual intoxication. For this reason, without discussing the remaining exceptions, a New trial must be ordered.