88 Neb. 784 | Neb. | 1911
This action was instituted in the district court for Franklin county by plaintiff in her own right and on behalf of her minor children, five in number, against the defendants William Boudreau, Liona Boudreau (afterward changed to Leonel Bourdeau), Frank Robbins, and the United States Fidelity & Guaranty Company; it being alleged in the petition in substance that the defendants were engaged in the sale of intoxicating liquors, as licensed saloon-keepers, in the village of Campbell, in that county, and the guaranty company as the surety upon their several bonds. It is alleged that August Henkel, the husband of plaintiff and father of her minor children,
One of the principal contentions on this appeal is upon the authority of the court to render judgment for the amount for which the said judgment was entered. The journal entry sIioavs that at 9 o’clock A. M. the jury returned their verdict finding “ Tor the plaintiffs and against the defendants William Boudreau, Leonel Bourdeau, and the United (States) Fidelity and Guaranty Company of
There is a sharp conflict between the affidavits in support of the motions for a new trial and the record. We find no affidavits submitted by plaintiffs prior to the ruling on said motions. It is quite clear that some of the jurors had left the jury box and mingled with those who were on the floor of the courtroom, and one affiant states that he saw some of the jurors on the lower floor of the
It is contended that the court erred in the admission of the bonds alleged to have been executed by tbe defendant guaranty company. We are persuaded that the objection is without merit. The answer of that company admits that it is a bonding company, “and that on or about April 9, 1907, it executed with and for William Boudreau, Leonel Bourdeau and Frank Robbins, respectively, as
It is also insisted that the court erred in entering a default against William Boudreau, the ground of contention being that the amended petition was filed after answer day and no notice was given of the filing thereof. The original petition is not a part of the transcript, and it is impossible for us to ascertain what it contained and whether there was any change of allegations as against that defendant or .not. Therefore the merits or demerits of the contention cannot be determined. The precipe filed in this court designates Leonel Bourdeau and the United States Fidelity & Guaranty Company, only, as appellants. It may be doubted if, under rule 13 of this court, William Boudreau is a party to this appeal.
Objection is made to instruction numbered 2, given by the court on its own motion. This instruction stated the issues in condensed form, informing the jury of the facts upon which the burden of proof rested upon the plaintiffs. In the issues stated the court did not inform the jury that it was incumbent on plaintiffs by a preponderance of the evidence to prove “the issuance of the license and the delivery and approval of the bond.” As we -have already seen, there was no issue as to the execution of the bonds to be submitted to the jury; the fact being sufficiently admitted. The petition, while not to be recommended as a model, contained the allegation that the defendants were engaged in the sale of intoxicating liquors in the village of Campbell “under a license granted by said village, its board and officers” at the time of the alleged sales and injury, and the answers of the principal defendants admit that during the year in which the cause of action arose they were engaged in the sale of liquors at the place
Instruction numbered 6 is complained of. By that instruction attention is cálled to the particular section of the statute by number, and the section is copied, being section 7168, Ann. St. 1909. This section contains provisions not applicable to the case on trial, and those provisions being copied into the instruction is claimed to have been prejudicial error. That this method of instruction cannot in all cases be approved must be conceded. If a section of the statute contains no provisions other than Uiose to be applied to the case in hand, there can be no ,’easonable objection to its being copied into the instruction; but where, as in this case, the section is broader in its provisions than the issues, it should not, as a general rule, be copied in its entirety. It was not proper to copy that part of the section referring to injuries inflicted by intoxicated persons upon the person or property of others, and to that extent the instruction fails to meet approval. But tins is not enough to require a reversal of the judgment. It must appear that the error resulted in prejudice .to the defendants. We are unable to perceive how the instruction could have that effect. True, there was no ques•tion of that kind involved in the case, but the true issue was so clearly presented to the jury by the evidence and other instructions of the court as to leave no ground for any presumption that the jury were in any respect misled thereby.
A portion of the seventh instruction given by the court is sharply criticised by defendants. We can find no objection to the statement of law governing .the casé, as contained in the instruction, and therefore do not copy that portion. After, so stating the law, the instruction continues: “It-is not for you, gentlemen of the jury, to inquire into and consider the propriety of the law in force in this state relative to the sale of intoxicating liquors, under
The action of the court in giving other instructions and in refusing to give instructions requested by defendants is criticised in the briefs and arguments of counsel, but upon a review of all such we can detect no sufficient reason for disturbing the judgment.
The vital issues in this case were few, yet the record shows that 27 instructions, including those requested by plaintiffs and defendants, covering 16 typewritten pages of the transcript, were given to the jury, involving many repetitions and the copying of a number of sections of the statute. We are unable to see why the whole of the law
There being no reversible error shown by the record, the judgment of the district court is
Affirmed.