Smiley v. Barnes

Mr. Justice McBride delivered the opinion of the court. 8. Instructions, § 104*—when instruction as to amount of recovery not prejudicially erroneous. An instruction that if the jury find for plaintiff the damages assessed must be limited to the amount of the ad damnum is not prejudicially erroneous as not properly limiting the recovery, where the instructions as to damages properly define the elements-on which plaintiff’s damages are to be assessed, and where it appears that the verdict is for an amount less than half the amount of the ad damnum, it thereby appearing that the jury were not misled by the instruction complained of. 9. Intoxicating liquors, § 249*—when instruction as to cause of death not erroneous. In an action by a widow to recover for injuries to her means of support by the death of her husband, such death being the result of personal injuries sustained by the deceased while intoxicated as a consequence of drinking liquor sold to him by defendant, a saloon keeper, an instruction is not subject to criticism where the word “contributed” is used instead of “materially assisted or contributed,” in relation to the connection between the death sought to be recovered for and the intoxication produced by drinking the liquor sold to deceased by defendant, it not being denied that such intoxication was produced solely by such liquor, and the question of the contribution of defendant’s wrongful act in causing such death being therefore not involved. 10. Intoxicating liquors, § 251*—when instruction properly limits damages to right of support. In an action by a widow to recover for injury to her means of support by the death of her husband, an instruction objected to as not limiting plaintiff’s damages to injury to her right of support, examined and held properly to limit such damages to the amount in which plaintiff was injured in her right of support. 11. Intoxicating liquors, § 251*—when refusal of instruction that loss of support of children not element of damages not reversible error. In an action by a widow to recover for injury to her right of support by the death of her husband, it is not reversible error to refuse an instruction that loss of support of plaintiff’s children was not an element of the damages to be assessed in this action, although such an instruction might properly have been given. 12. Appeal and error, § 1406*—when verdict will not be disturbed on ground of excessiveness. In an action by a wife to recover for injury to her right of support as a result of the death of her husband, the question of the amount at which plaintiff’s damages is to be assessed is a matter for the determination of the jury, and the amount at which such damages were assessed by the verdict will not be interfered with where it does not appear that the jury in assessing damages acted from prejudice, sympathy or other improper motive. 13. Intoxicating liquors, § 245*—when verdict in favor of widow for loss of support not excessive. In an action by a widow to recover for injury to her means of support by the death of her husband, held that a verdict for plaintiff for $4,500 should not be disturbed on the ground that the amount of damages assessed was excessive, where it appeared that deceased was a young and healthy man in the prime of life, and situated so as to give his family a comfortable living and properly to care for, maintain and educate his children.