100 Neb. 160 | Neb. | 1916
Action by the widow and minor children of Joseph Hauth, deceased, to recover damages for his death, which it is alleged was contributed to by intoxicating liquors furnished him by defendant Sambo during the night immediately preceding his death. Sambo was a retail liquor dealer in the city of Omaha, and defendant Illinois Surety Company was surety on his bond. The action was instituted and service obtained upon the surety company in Sarpy county, and summons sent to and served upon Sambo, the principal, in Douglas county. The jury returned a verdict against both defendants for $11,400. Judgment was entered against the principal for the full amount of the verdict, and against the surety for $5,000, being the amount of the penalty fixed in the bond. Defendants appeal.
A number of errors are assigned, which will be considered in the order in which they are argued in the brief.
This section of the statute is clear and unambiguous. It makes the furnishing of the bond a condition precedent to the obtaining of a license to sell intoxicating liquors. It is, in every sense of the word, an integral part of the application for a license. The surety, who signs such a bond, knows at the time of doing so that the filing of the bond is one of the necessary conditions which must be complied with before the license is issued. The surety is, therefore, in every true sense of the word, a party to the application. He is charged with knowledge of the fact that the signing of this bond renders him subject to be sued upon it for the use of any person, or his legal representative, who may be injured by reason of the selling or giving away of any intoxicating liquors by the person so licensed, or by his agent or servant. He knows that the bond is conditioned that his principal will not violate any of the provisions of the chapter of the statute relating
We concede that under the rules governing recovery in actions on ordinary bonds a judgment in excess of the penalty of the bond would be erroneous. In Andresen v. Jetter, 76 Neb. 520, and Sullivan v. Radzuweit, 82 Neb. 657, the implication is that an action upon a saloon-keeper’s bond is governed by the same principles as one upon an ordinary bond. In those cases, however, it will be seen that the distinction under consideration here was not presented or discussed. Where the distinction has been considered, we think the courts are generally holding that the rule in an action on ordinary bonds does not apply in actions upon liquor bonds. In the opinion by Maxwell, J., in Jones v. Bates, 26 Neb. 693, it is said: “The bond is merely a mode of securing satisfaction for the injury. In other words, the bond is given as n means of indemnifying persons who may be injured by the saloon-keeper furnishing intoxicating liquors to another.” In Wardell v. McConnell, 23 Neb. 152, we held that principals and their sureties upon license bonds are liable to an action for damages jointly with the principals and sureties upon
In order that there may be no doubt in the future as to the rule in actions on liquor bonds, the rule announced in the Jetter and Radsuweit cases will be considered as limited to actions on ordinary bonds.
In Bergmann v. Koehn, 99 Neb. 525, we held: “In an action against the saloon-keeper and his surety for damages, in which the jury has returned a verdict against both defendants for $9,000, the trial court has the power to .render, a judgment against the principal defendant for
The third assignment is that the court erred in giving instruction No. 8, which defines the term “intoxication.” While the definition of the term is not quite as explicit as it might be, it could not have prejudiced the jury, for the reason that the evidence of intoxication was so strong that the jury could not have been 'misled by the definition given.
The fourth assignment assails instruction No. 5, given by the court, which told the jury that the liability of a surety upon the bond of a liquor dealer is coextensive with that of the principal, and that their verdict with respect to the surety company should be the same as their verdict as to the principal. The surety company cannot complain of this instruction, for the reason that, to the extent of the penalty named in the bond, its liability was coextensive with that of the principal, and the court in entering judgment limited its liability to that sum. Defendant Sambo cannot complain, as his' liability was not limited by the bond.
The fifth assignment challenges instruction No. 10, given by the court,- in which the jury were told that it was not material whether the employees of the railroad company were negligent or not, or whether or not the railroad company was liable for damages, if any, sustained by plaintiff; that the question for the jury to determine was whether the deceased was intoxicated at the time of his death, and whether the defendant Sambo furnished the
In the sixth assignment instruction No. 17 is complained of. It-told the jury that if they found for the plaintiff they would determine the amount of the damages to which plaintiff was entitled under the evidence, and deduct from said amount the sum which the evidence shows had been paid plaintiff by the Chicago, Burlington & Quincy Railroad Company, to wit, the sum of $1,100, and render a verdict for the remainder. The complaint to this instruction is that but one injury resulted in this case, viz., the death of Hauth; that plaintiff was entitled to only one satisfaction for the loss sustained by his death, and that she obtained that satisfaction from the railroad company. There can be no¡ controversy over the rule of law invoked, but we think it is not applicable here. The contract of settlement between plaintiff and the railroad company is before us. It shows upon its face that it is a compromise
The seventh assignment is that the court erred in refusing to direct a verdict for defendants. In the light of what has been said, nothing need be added here. '
The eighth and ninth assignments relate to the witnesses Pox and Yeit, who on the trial testified directly at variance with the testimony which they had given a short time prior thereto in depositions. They were interrogated as to their contradictory statements in the depositions, and either denied making them or said they “did not remember.” Counsel for plaintiff were then permitted to show this difference in their testimony by calling the stenographer who took the depositions. These two assignments involved the question of the right of the court to permit a party, who has been taken by surprise on the trial by having a witness whom he has introduced testify contrary to statements made by such witness to counsel prior to the trial, to impeach his own witness. It is contended that this cannot be done. Many authorities, in addition to those cited, could be found showing that to be the general rule; but, like all general rules, it has its exceptions. The exception to the rule is well sustained in Selover v. Bryant, 54 Minn. 434, and in the note to the case in 21 L. R. A. 418, and in Doran v. Waterloo, C. F. & N. R. Co., 170 Ia. 614.
The tenth assignment assails the refusal oí the court to give instruction No. 9, requested by defendants, by which the court was requested to tell the jury that, if they found from all the circumstances and evidence in the case that the accident which caused the death of Hauth would have happened whether he was intoxicated or sober, and that
The eleventh assignment complains of the refusal of the court to give instruction No.' 6, requested by defendants, as follows: “You are instructed that the plaintiffs are not entitled to recover damages for the loss of the society and companionship of the husband and father, nor for injuries to the feelings and sentiments caused by the intoxication and drunkenness of the husband and father, nor can damages be allowed by way of compensation for grief, wounded feelings and disappointed hopes.” By instruction No. 16, given by the court on its own motion, the jury were correctly told just what things they might consider in determining the amount of the damages to be awarded in case they found for plaintiff, and concluded with this statemen! : “'But in no event can the amount of damages exceed the value to plaintiffs of the support of deceased, which was lost to them through his death.” No claim is made in the' petition for damages on any of the grounds stated in the requested instruction. The instruction was properly refused.
The final assignment assails instructions 4, 10 and 14, given by the court, on the ground that they are contradictory, misleading and inconsistent. We are unable to agree with counsel upon this point.
Finding no prejudicial error in the record, the judgment of the district court is
Affirmed.