41 Neb. 695 | Neb. | 1894
This action was brought by the plaintiffs in error, AgnesBloedel, Matilda Bloedel, and Alexander Bloedel, by Amelia Bloedel, their next friend, against John Zimmerman and several saloon-keepers in the village of Papillion, and the sureties on their liquor bonds, to recover damages for injury to the plaintiffs’ means of support resulting from the selling to their father of intoxicating liquors. The petition, after alleging that the plaintiffs are the minor children of Andrew Bloedel, the execution and delivery of the bonds sued on, and the issuing and delivery of the licenses to the principals in said bonds, avers, in substance, that each of said saloon-keepers sold and gave malt, spirituous, and vinous liquors to said Andrew Bloedel at the times therein stated and during the existence of their licenses ; that said Bloedel has become an habitual drunkard through the excessive use of intoxicating liquors so furnished as aforesaid; that said plaintiffs have no means of
Several rulings of the trial court on the admission and rejection of testimony are urged in the brief of counsel as grounds for reversal; but the rulings complained of, and pointed out in the brief, cannot be reviewed by this court, for the reason that the same are not assigned with sufficient particularity in the petition in error, they there being assigned in the following language:
“4. The court erred in overruling the objections made by the plaintiffs to testimony offered by defendants, which ruling of the court was duly excepted to at the time.
“5. The court erred in sustaining objections made by defendants to evidence offered by the plaintiff, which ruling was excepted to at the time.”
The bill of exceptions discloses that numerous objections and exceptions were taken by the plaintiffs to the rulings of the court, both in admitting and excluding testimony, yet neither of the foregoing assignments indicate what rulings are referred to or intended. The assignments are too indefinite to be considered. (Wanzer v. State, 41 Neb., 238; Kirkendall v. Davis, 41 Neb., 285.)
It is insisted that the court erred in giving instruction No. 9 on its own motion, for the reason that it was not based upon the evidence. We are precluded from giving this instruction any consideration, inasmuch as the plaint
Complaint is likewise made of the giving of the defendants’ first request to charge, which is in the following language: “First — That if the jury believe from the evidence in the case that Andrew Bloedel, the father of the minor children, plaintiffs in this case, during the four years immediately preceding the commencement of this suit, was able and willing to provide such children a suit.able home, but they refused and neglected to occupy such home with the father, Andrew Bloedel, that then such father was under no legal obligation to provide or support them elsewhere, unless they had been compelled to leave ■such home by reason of abuse and ill-treatment by such father.” We have been unable to find any testimony in the record which would warrant the giving of the above instruction. On the contrary, the undisputed proofs show that plaintiffs’ father, during the four years preceding the bringing of this suit, had no means with which to support his children; that during that time he was a hard drinker, was often intoxicated, and saved scarcely sufficient, with the rents derived from his property, to support himself. It further appears that plaintiffs and their mother were compelled to leave the father and husband on account of his failure to support them. The instruction is misleading and should not have been given.
After a careful review of the evidence, we are persuaded that it fails to support the verdict. The testimony shows,
Reversed and remanded.