46 Neb. 449 | Neb. | 1895
This action was originally brought in the district court-of Gage county by Rosa McLaughlin on her own behalf,, as widow of John McLaughlin, and on behalf of the-minor children of said John McLaughlin. The defendants were the members of the firm of John J. Patterson & Co. and the sureties on the bond of said firm given in compliance with the requirements of chapter 50, Compiled Statutes. Subsequently an amended petition was filed in which as defendants were added the names of William II.
As we understand the petition, the death of John McLaughlin and the subsequent loss of support of his family are the facts from which the damage is claimed to have resulted. It is true that between October 20, 1890, and March 23, 1891, various sales of intoxicating liquors to John McLaughlin were alleged to have been made, but these sales were referred to simply as contributing to his being habitually intoxicated, and perhaps therefrom resulting his diseased condition. There was no claim that between March 23,1891, and April 6 thereafter, which latter was the day on which McLaughlin died, there had been sold to him any intoxicating liquors, nor that, in this interim, he had used such liquor. The testimony of attending physicians was that death resulted from a general breaking •down of the system caused by the use of too much alcoholic stimulants, and this, as we understand it, was what was alleged in the petition.
The court instructed the jury by the tenth instruction as follows: “The court instructs the jury that where several liquor dealers furnish the intoxicating liquors, the use of
On the trial the proofs were that the greater part of the intoxicating liquors consumed by McLaughlin were sold to him by J. J. Patterson & Co. There were, however, a few instances as to which the testimony was that intoxicating liquors were sold to him in the saloon of William H. Dolan. This was denied by Dolan and his employes when examined as witnesses. Following this was uncontradicted testimony that, in many instances, McLaughlin had been refused whiskey, notwithstanding the fact that he urgently sought to buy and pay for it. Elias N. Whitmarsh, a witness for the plaintiff in the district court, testified that after October 20, 1890, and before 1891 [the date was not more definitely fixed], he saw John McLaughlin at the bar of William H. Dolan drink something, but whether it was water or beer he could not say. This witness said
The third paragraph of the instructions given by the court was as follows: “The court instructs the jury that the sale of intoxicating liquors may be proven by circumstantial evidence, and where it is shown that the person was sold or furnished liquor at a licensed saloon, the presumption is that such liquor was intoxicating.” Whether or not intoxicating liquors were by Dolan sold to McLaughlin, was the most seriously contested question in this case. The word “ liquor” is defined by Webster: “ 1. Any liquid or fluid substance, as water, milk, blood, sap, juice, and the like. 2. Especially, alcoholic or spirituous fluid, either distilled or fermented;” as, brándy, wine, whiskey, beer, etc. If the witnesses, in describing what liquid had been sold to McLaughlin, had uniformly described it merely as. liquor, it might be proper for the jury to assume that it was in that class specifically referred to in the second definition above given; but such was not this case. There was evidence that the liquid furnished by Dolan to McLaughlin, at least on one occasion, was seltzer, and within one of the definitions given above seltzer is clearly embraced. Under these circumstances- it was erroneous to instruct the jury that whatever liquor is shown to have been sold in a licensed saloon is presumed to be intoxicating.
There are discussed other questions which.need not in this proceeding be considered. The judgment of the district court as against the plaintiffs in error is
Reversed.