45 Neb. 813 | Neb. | 1895
On the 5th day of December, A. D. 1889, Mary J. Houston, for herself and on behalf of her minor children, instituted this action in the district court of Lancaster county against John Gran, a retail dealer in liquor in the city of Lincoln, and the sureties on his bond, Jerry Harrington and Thomas Carr. In the petition it is alleged that on the 30th day of March, 1889, John Gran was engaged in the business of selling malt, spirituous, and vi
“4. That on the 30th day of March, 1889, the said James H. Houston, deceased, her husband and the father of the plaintiff's children, became greatly intoxicated and continued in a fit of intoxication the whole of the said day and evening of the 30th day of March, 1889, and that he spent the afternoon and evening of said day in the saloon and place of business of the defendant John Gran in said county and said state.
“5. That the defendant John Gran sold, gave, and furnished to him, the said James H. Houston, the liquors that caused his intoxication on the said 30th day of March, 1889, and furnished him the said liquors in sufficient quantities to cause his intoxication, and did cause his intoxication, and he continued to sell and furnish liquors to said James H. Houston, deceased, after he had become so intoxicated.
“ 6. That on the evening of the said 30th day of March, 1889, the said James H. Houston, while intoxicated from the effects of the liquors so sold and given and furnished to him as aforesaid, in so much so as to not be able to care for himself or protect his person from surrounding danger, wandered upon the tracks of the Chicago, Burlington &
“7. The plaintiffs were all dependent upon the said James H. Houston for their means of support, and the proceeds of his labor and earnings amounted to about $1,500 per year, which he applied to the support of these-plaintiffs; that he was about forty years of age, healthy, energetic, and industrious, and a skilled mechanic.
“8. The plaintiff Mary J. Houston and said minor children constitute one family, and are entirely without the means of support. The plaintiffs have sustained damages in the premises in the sum of $5,000, together with interest thereon from the 30th day of March, 1889.”
The prayer of the petition was for judgment in the sum. of $5,000, interest, and costs. To the petition Gran and. his sureties filed the following answer: “ They admit that. John Gran was engaged in the business of selling malt,, spirituous, and vinous liquors under a license duly granted by the city of Lincoln at the time and place mentioned in the petition. They also admit that they executed and delivered a bond to the city of Lincoln, and that the bond in question is described in the plaintiffs’ petition, but they deny each and every other allegation contained in said petition except as herein expressly admitted.” A trial of the-issues resulted in a verdict against Gran and his sureties in the sum of $100. This, in an error proceeding to this court on the part of Mrs. Houston and the children, was reversed and the case remanded to the district court. For report of this decision see 38 Neb., 687. In the second trial of the-ease in the district court Mrs. Houston and the children recovered a verdict for $5,000. A separate motion for new trial was filed for Jerry Harrington and a joint one for
The first error of which complaint is made and argued in the brief filed for plaintiff in error is therein stated as follows: “The trial judge erred in the instructions given as a whole and in giving undue prominence to the idea that the amount of liquor furnished and the time when given, and the condition of the deceased as to being drunk or sober, was of little importance.” It is ably and strenuously contended that the proposition that “ every person who sells or gives intoxicating liquors to another, and thereby in whole or in part causes such intoxication of such person, is liable for the consequences of such intoxication” was given and many times in different form or phrase and in several instructions repeated, and thus undue prominence was given to the idea expressed, to the exclusion of other important issues in the case; that the tendency was to mislead the jury and that it had the effect of misleading the jury. As the result of a careful examination of the instructions in which any expression appears in reference to the particular idea or portion of the issues which it is claimed was unduly repeated in connection with the other instructions given and the testimony adduced during the trial, we are convinced- that they are not open to the criticism made by counsel, at least not to the extent urged in the argument. It was necessary in properly instructing the jury as to the different phases of the case as presented by the evidence to embody this idea in several of the instructions; and while there may have been repetitions which were not' necessities, or which in the opinion of counsel or this- court were unnecessary, yet there were none which
It is further urged that the instructions were unfair and erroneous in so far as the rights and interests of the sureties on the bond were involved, and that a distinction should be drawn between the liability of the sureties upon the bond of a liquor dealer and that of the principal, and, as against the surety, the proof that the injuries were the direct result of the intoxication caused by the principal in the bond should be of the clearest character; that, quoting from the opinion in Curtin v. Atkinson, 36 Neb., 110, “An undertaking will be strictly construed in favor of sureties, and their liability will not be extended by construction beyond their specific agreement.” The rule announced in that case was applied to sureties on statutory bonds of retail liquor dealers. The condition of the bond required by statute to be given by a retail liquor dealer is “that he will not violate any of the provisions of this act; and that he will pay all damages, fines, and penalties and forfeitures which may be adjudged against him under the provisions of this act,” (Compiled Statutes, sec. 6, ch. 50, entitled “Liquors,”) and to this the sureties bind themselves. In section 15 of the same chapter it is provided : “ The person so licensed shall pay all damages that the community or individuals may sustain in consequence of such traffic, he shall support all paupers, widows, and orphans, and the expenses of all civil and criminal prosecutions growing out of, or justly attributed to, his traffic in intoxicating drinks; said damages and expenses to be recovered in any court of competent jurisdiction by any civil action on the bond named and required in section 6 of this act, a copy of which, properly
It is further insisted, and here we have the pith of the argument of counsel on this branch of the case, that the doctrine that any dealer who furnished any of the liquor by which intoxication was produced is liable cannot be extended or held to cover a case where death is the ultimate result of the intoxication; that this appears from section 18 of the liquor law, which is as follows: “ On the trial of any suit under the provisions hereof, the cause or foundation of which shall be the acts done or injuries inflicted by a person under the influence of liquor, it shall only be-necessary to sustain the action to prove that the defendant or defendants sold or gave liquor to the person so intoxicated, or under the influence of liquor, whose acts or injuries are complained of, on that day or about that time when said acts were committed or said injuries received; and in an action for damages brought by a married woman or other person whose support legally devolves upon a person disqualified by intemperance from earning the same, it shall only be necessary to prove that the defendant has given or sold intoxicating drinks to such person during the period of such disqualification.” (Compiled Statutes, sec. 18, ch. 50.) That the statement “it shall only be necessary to prove that the defendant has given or sold intoxicating drinks to such person during the period of such disqualification” refers
It is assigned for error that “ the court erred jn giving the eighth instruction.” This instruction was as follows: “If you find from the evidence in this case that the intoxication of James H. Houston was such as to deprive him of the normal use of his faculties, either physical or mental, so that he was rendered incapable of caring for himself and of protecting himself from the results of accidents or circumstances to which he was subjected, and that by reason of such deprivation of his normal powers of body or mind, Kis death was produced by his inability to protect or defend himself against the circumstances which threatened his life, and that his death was caused by such inability to so protect and to defend himself, then you are instructed that such intoxication is to be deemed and taken as the cause of his death.” It is claimed that the court in the first sentence of the instruction assumed the fact of the intoxication of James H. Houston, and further that the instruction was inconsistent or in conflict with others of the charge in which the jury were told that if the party obtained a portion of the liquor which caused the intoxication of the defendant, it was sufficient to fix a liability upon defendant, while in this the jury were informed that the intoxication must be such as to deprive the deceased of his normal powers of body and mind and render him incapable of caring for himself. As to the first portion of the objection, there was no conflict in the evidence as to the intoxication of the deceased during a part of the day and evening prior to his death. It was a fact which was not controverted, and it was not error for the court to state it as it did in the instruction. (2'Thompson, Trials, sec. 229§.) With reference to the second objection it will suffice to say
It is urged that the fifteenth instruction was erroneous, in that it told the jury that it was proper in estimating the damages to take into consideration the probable length of life of the deceased, but took no notice of the fact that the period during which the plaintiff in the action would be entitled to the support of the husband would be during their joint lives, and further, that it should have called attention to the drinking habits of the deceased. The instruction referred to was such a one as has been approved by this court in similar cases [Roose v. Perkins, 9 Neb., 304; Sellars v. Foster, 27 Neb., 118; King v. Bell, 13 Neb., 409), and was, to the extent that it purported to cover the issues in the case, correct; and in it the jury were told to take into consideration the habits of the deceased. If a more extended and explicit instruction had been desired upon the subject embraced in this, it should have been prepared and presented by the party, with a request that it be given. Even conceding that there was error committed in the respect claimed by counsel, i. e., that there was a failure to notice and call attention to the expectancy of the joint lives of plaintiff and deceased, it may be said that it was not prejudicial to the rights of defendants. The rights of the five children, of ages ranging from three years to fifteen, were to be weighed, and in view of the sum which it was testified that deceased could earn per day, etc., the amount of the verdict cannot be said to be excessive for lack of consideration by the jury of the element which it is claimed, was omitted in the instruction.
It is claimed that the court erred in giving the sixteenth instruction, in which the jury were told that if they found against the principal defendant, the saloon-keeper, they
It is next claimed that the court erred in giving on its own motion the sixth, seventh, eighth, ninth, tenth, fifteenth, and sixteenth instructions, and the seventh is attacked as being erroneous and prejudicial in the portion wherein it was said: “You are instructed that if you find from the evidence that the defendant Gran, by himself or by his servants or employes, sold, gave, or furnished to said Houston intoxicating liquors in any quantity whatever, which liquors aided in producing a state of intoxication,” etc., and more particularly the words “any quantity whatever,” by which it is claimed the jury would be induced to'believe that if liquor had been obtained by deceased in Gran’s saloon, in even the smallest quantity, it would be sufficient to raise a liability. It must be remembered that the words were followed by others in which the jury received the information that the liquor, whatever the quantity, must have been sufficient to aid in producing the intoxication, and must have contributed to the intoxication. The words used were probably not the best which could have been employed, and it is probable that the idea of contribution in producing tbe intoxication was more finely drawn or minimized than was entirely proper, but even if this be true, in view of the evidence in relation to the point involved and sought to be conveyed by the instruction, i. e., the amount of liquor, if any, furnished to Houston at Gran’s saloon, we cannot believe that it misled the jury or prejudiced the rights of the complaining parties.
It is next argued that the ninth instruction proceeds upon the assumption that defendant Gran had furnished the means of intoxication. We do not think the instruction is open
It is alleged, “The court erred in giving on its own motion the eleventh instruction and in refusing to give the twelfth instruction asked by the defendants.” By these instructions the question is raised of whether the consent or acquiescence of Mrs. Houston in the selling or furnishing of the liquors to her husband constituted a defense to the action, or should, if shown, be taken into consideration by the jury in estimating the damages and in mitigation thereof. The rule governing this question was announced by this court in the case of Buckmaster v. McElroy, 20 Neb., 557, in which it was held that a party who purchased, paid for, and drank liquors could maintain an action for damages
It is alleged as error that the court erred in refusing to instruct the jury as asked upon the question of proximate cause. This assignment refers to the request to give the
It is claimed by counsel that the verdict of the jury was evidently the result of passion and prejudice. It is argued that this is shown by an excessive verdict and the affidavits of the jurors. A careful examination of the evidence bearing on the point of the amount to be allowed, if any, convinces us that the verdict in this particular is fully sustained by the evidence and cannot be said to show, when viewed in connection with the testimony on this point, that it was fixed in amount by considerations of passion and prejudice. The affidavits of the jurors filed in support of the motion for new trial were in relation to the conversations which occurred among the jurors in the jury room after the jury had retired to consider the case, and were devoted mainly, if not entirely, to making it appear that the jurors were influenced to render the verdict, by improper motives and through prejudice. The motives which finally influenced each particular juror to render a verdict must necessarily be and remain within his own conscience, and cannot be correctly judged, as a rule, by chance remarks made or heard during the arguments and conversations which take place while deliberating upon a verdict. These are matters essentially inhering in the verdict. The affidavits presented in the case at bar were objectionable in this respect and cannot be received to impeach the verdict. (Johnson v. Parrotte, 34 Neb., 26; Harris v. State, 24 Neb., 803; Gottleib v. Jasper, 27 Kan., 775; Bryson v. Chicago, B. & Q. R. Co., 57 N. W. Rep. [Ia.], 430.)
It appears that the witnesses were excluded from the court room during the progress of the trial, and that one J. Bush was a witness for plaintiff, and when this witness was called to the stand, counsel for defendants objected to his testifying, the following being the record of what occurred at that time:
“Jacob Bush, sworn and examined by Wilson.
“Lambertson: I object to this witness testifying, on the ground that he has been present in court this morning while the preceding witness was testifying.
“Wilson: Mr. Heaton’s examination was restricted to one point and this man’s examination will be restricted to the earnings of which Mr. Heaton said nothing.
“The Court: That is all you wish to prove?
“Wilson: Yes.
“The Court: Overruled, on the ground that counsel states that the witness is only to testify to earnings. Exception.”
It is true that the evidence of the prior witness was on an entirely different branch of the case from the one to which the testimony of this one was' directed, and it does not appear, and no claim is made, that the party calling this witness was in any way or to any degree at fault for his action, which, it is claimed, disqualified him as a witness, and because of which he should not have been allowed to testify. Under the facts and circumstances as they appear of record there was no error in allowing the witness to testify. (1 Thompson, Trials, sec. 281.)
It is alleged that the court erred in admitting a certified copy of the bond, with justification of the sureties, over the objection of counsel for defendants. In the section of the statute ’which provides for the taking of a bond of a
It is argued that it was error for the court to allow Charles Shoemaker, the coroner, to give his opinion as to the cause of Houston’s death. The question calling for his opinion was objected to, the objection overruled, and exception taken by counsel for defendants. The witness was the coroner, and as such took charge of Houston’s body, and was a physician and surgeon and his evidence was admissible. (Rogers, Expert Testimony [2d ed.], sec. 49, [1st ed,], sec. 50.)
A question was asked of the plaintiff when testifying, which was answered without objection. Counsel for defendants then moved to strike out the answer as incompetent. This was overruled, to which counsel excepted, and the action of the trial court is now claimed to have been erroneous. The answer given was responsive to the question, and when allowed to be received without objection, whether or not the court will sustain the motion to strike it out becomes discretionary, and we have discovered nothing prejudicial to defendant’s rights in the refusal of the court in this particular instance. (1 Thompson, Trials, sec. 718; Abbott, Trial Brief, 62.)
This witness was asked the following question in reference to her husband: “What was his chance of getting work when there was any brick-laying to be done, if you know?” This was objected to, as incompetent, immaterial, irrelevant, and calling for the opinion of the witness. The objection was overruled and error is assigned. The question, while probably susceptible of an interpretation by which it might be said to be calling for an opinion, has a more obvious meaning; i. e., what had been his ability to get work, or was his skill in his trade such as to enable him to obtain work when there was any of the kind in progress,
It is claimed that “The court erred in permitting the plaintiff to testify as to what the deceased would usually do with his money when he was paid off, and permitting her to testify as to who handled the money usually, and who bought food, clothing, and other necessaries.” We do not think there is any merit in this objection. The tendency of this evidence, as we read it in the record, was to prove that the money earned by the husband was the source of and devoted to the support of the wife and children and which they claimed was lost to them by his death.
The next complaint is that the court sustained an objection to the following question: “You may state whether or not any instructions had been given by you to your bartender relative to the sale or refusal to sell or give intoxicating liquors to the deceased, James Houston, prior to this date,” and excluded the evidence sought to be elicited by it. This question was passed upon when this case was formerly before this court, and it was held: “The fact that a saloon-keeper, prior to the sales complained of in a civil damage case, had instructed his servants not to sell liquor to the deceased, is inadmissible in evidence as not tending to prove that such sales were not in fact made,” and will now be adhered to without further discussion. (Houston v. Gran, 38 Neb., 687.)
During the cross-examination of Thomas Carr he was asked this question: “ What capacity were you in in 1883?” [referring to what position he occupied in the saloon business], which was objected to, as incompetent, irrelevant, and immaterial. The objection was overruled and the witness answered: “I was acting as manager then.” Counsel for defendant argued that the death of Houston was in 1889, and to permit the defendant Carr to be interrogated in re
We will next notice the statement that the court erred in permitting the following question to be answered (this refers to the cross-examination of Carr) : “ Since 1881 have you been operating a saloon as principal?” As shown in the record there was no objection made to (his question, and the assignment, therefore, cannot be considered.
It is urged that the court erred in not granting plaintiff in error a new trial on account of newly-discovered evidence. In support of this part of the motion for a new (rial affidavits were filed setting forth the facts to be proved by the newly-discovered witnesses. This evidence, according to the detailed statements in the affidavits, was cumulative in character, and it cannot be said that it would be sufficient to render clear that which was before doubtful, or of so controlling a nature as to probably change the verdict. Hence, the trial court did not err in refusing to grant this ground of the motion for new trial. (Schreckengast v. Ealy, 16 Neb., 510.) A new trial will not be granted on account of newly-discovered evidence merely cumulative in its character. (Campbell v. Holland, 22 Neb., 589; 16 Am. & Eng. Ency. of Law, 575-577.)
To support the motion for a new trial in its allegation of misconduct of the jury there appears in the affidavit of
Affirmed.