#### Caroline C. Blatz, Resp’t, *v.*Jacob Rohrbach, App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed December 14,*1886).

Civil damage act — Laavs 1813, chap. 646 — 'WBat sufficient to entitle A RECOVERY OF DAMAGES FOR SUICIDE OF ONE AVH1LE INTOXICATED.

Where the evidence showed that plaintiff’s husband arrived at his home about twenty minutes to eleven at night, very much intoxicated. That plaintiff seeing his condition, tried to quiet him, but failing to do so, took her baby and went up-stairs to bed, leaving her husband down-stairs, and in the morning he was.found hanging by the side of the closet door, having evidently committed suicide. • That the deceased had spent the evening at defendant’s saloon, playing cards and drinking beer, or other drink sold to him by the defendant. That defendant had been previously requested by plaintiff not to sell any more strong drink to her husband. *Held,*there was sufficient evidence to sustain the verdict in favor of plaintiff.

Appeal from a judgment in favor of plaintiff entered on the verdict of a jury at the Westchester County Circuit.

*Charles H.*Noxon, for resp’t; *John S.*Graber, for appl’t.

Barnard, P. J.

The plaintiff’s husband arrived at his home in Mt.Yernon, on the fourth of March, 1885, at about twenty minutes to eleven P. M. His Avife, the plaintiff, tried to quiet *69him, as sbe testifies be was very much intoxicated. Sbe failed to do so, and in about an liour after be came borne, tbe plaintiff took ber baby and went np-stairs to bed, leaving ber husband below. It was not an unusual tiring for tbe busband to sleep down-stairs. In tbe morning be was found banging by tbe side of the closet door, having evidently committed suicide. The plaintiff brings this action against tbe defendant under 646, Laws of 1873, known as tbe Civil Damage Act. Sbe gave proof, tending to show that tbe defendant sold or gave away some two or three glasses of beer to ber busband on tbe night in question. A very sharp contradiction is made as to tbe condition of tbe busband when be left the saloon of tbe defendant, but in view of tbe fact that tbe busband arrived at tbe saloon at half-past seven, P. M., and played cards there, when tbe result, in some friendly way, entitled tbe players to drink; and in view of tbe fact that tbe habits of tbe busband were bad, tbe issue upon tbe intoxication was well found in favor of tbe intoxicated condition of tbe busband, by reason of liquor, whether beer or other drink, sold to him by tbe defendant.

Added to this, both tbe plaintiff and ber daughter were explicit in their statements, as to an extreme condition of intoxication of tbe deceased husband and father. Did this state of intoxication induce tbe suicide ? Tbe question cannot ordinarily have any direct proof. It must be inferred, and tbe case proven is that he was tbe father of ten children,- tbe youngest but a few weeks old. He was addicted to strong drink, but made a comfortable living for tins large and helpless family, as only two earned their own board. He bad formerly attempted suicide, but whether or not be was then sober or otherwise, does not appear.

There was found after tbe suicide, a paper containing tbe words, “ Give my watch to the boy,” and that bis brother-in-law, one Johnson, owed him $57. This is tbe case, and tbe jury have found tbe suicide tbe result of tbe intoxication, produced by tbe defendant. An appellate court cannot properly set aside tbe verdict. *Neu*v. McKechnie, 95 N. Y., 632.

There was no proof of insanity, and -it was unnatural, and therefore unusual, for a father with an undisturbed brain to deliberately leave a wife and so many helpless children behind him, under tbe circumstances surrounding tbe suicide. Tbe jury were told that to justify a verdict, they must find that tbe intoxication was to such an extent as to deprive tbe deceased of tbe natural use of bis faculties, and incapable of caring for himself ; and that was to be proven, and not derived from speculative opinion, and that tbe intoxication caused tbe act. Tbe damages are not excessive. There was proof tending to show a request by tbe defendant’s wife, while in charge of tbe bar, not to sell any more strong drink to the deceased busband of plain*70tiff. This notice was given by plaintiff, and every circumstance stated which, should have been heeded. The judgment should, therefore be affirmed, with costs.

Pe,att, J., concurs.