15 Neb. 150 | Neb. | 1883
The defendants in error are the widow and infant children of one John Bauer, who, one dark night in October 1881, drove his wagon off a bluff of Pebble creek, in Dodgi
There are twenty-two errors assigned in the petition in error, some of which are merely formal and will not need to be noticed separately, but those which present substantial points will be considered in their order.
“1. That the facts set forth in the said petition of the defendants in error are not sufficient in law to maintain the aforesaid action against the plaintiffs in error.”
Chapter 50 of the Compiled Statutes, after providing for the granting of license for the sale of malt, spirituous, and vinous liquors, when properly applied for and deemed expedient, the giving of bonds by the licensed persons, etc., proceeds as follows:
“Sec. 11. Any person who shall sell or give away, upon any pretext, malt, spirituous, or vinous liquors, or any intoxicating drinks, without having first complied with the provisions of this act and obtained a license as herein set forth, ***** shall be liable in all respects to the public and to individuals, the same as he would have been had he given bonds and obtained license as herein provided.
“Sec. 15. 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 attributable to his traffic in intoxicating drinks, etc.
“Sec. 18. 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,” etc.
The petition is in the usual form, as applicable to the former statute. And while it doubtless contains several allegations which the changes in the law have rendered unnecessary, I think that it contains all that are essential; at least, in the absence of specific grounds of objection, we-must hold it to be sufficient.
“2. That, the said court erred in sustaining the demurrer of these defendants in error to the second ground of de- ' fense,” etc.
“3. That the said court erred in sustaining the demurrer of these defendants to the answer of each of these plaintiffs in error, alleging misjoinder of parties defendant.”
The above two points may be properly considered together, considering the allegation of the petition that the-defendants were, at the time of the selling complained of,, engaged in business in the retail traffic in intoxicating liquors, in the village of Scribner, each foi; himself, which negatives the idea of the act of selling being a joint one. Were we to apply the rules of pleading which existed before the adoption of the reformed or code system, we would probably hold that the demurrer should have been overruled or held to reach back to the petition as the first de
Upon the examination of the adult plaintiff as a witness in her own behalf and that of the infant plaintiffs, she was permitted to answer the following questions, put to her by jolaintiffs’ attorney over the objection of the defendants:
1. What was his physical condition, as to health?
2. Was he a good or a bad farmer?
3. How well did he provide for his family?
4. How much did he produce or earn each year?
5. State whether any of the children are large enough or old enough to contribute to the support of the family.
Plaintiffs, in their brief, do not point out wherein this evidence is objectionable, and I fail to see that it is so. This action is brought for the loss of the support which would otherwise have been supplied them by the husband .and father. The extent of such loss could only be measured by the character and value of the services of the deceased in his avocation while living. And as to question numbered five, the value of such support to the children would depend, in some degree at least, upon their inability to support themselves.
The witness John Bauei‘, upon his direct examination on the part of plaintiffs below, was allowed to answer the following question over the objection of the plaintiffs in error.
Q,. If a man takes enough of it, will it intoxicate?
This question was asked in reference to the beer which had been furnished to deceased and witness by the defendant English, and drank by them.
Beer, as defined by Craig in his dictionary, is “ a fermented liquor made from the malt of barley, and flavored with hops. It may be called the wine of barley. A variety of kinds are made; those in use at present are distinguished by the names of ale, porter, or strong beer, table beer, and small beer, which differ little except in strength
“ 5. That the said court erred in ruling out the evidence-offered by the plaintiffs in error on the trial of said cause,, to which rulings they excepted.”
While Frederika Bauer was on the stand as a witness in her own behalf and that of her children, the other defendants in error, she was cross-examined by the attorney for plaintiffs in error, by whom she was asked the following question:
Q. State if Albert Bleihl, or John Bauer, or one of them, Sunday morning, when they come to report at your house that your husband was dead, if one of them did not ask you if they should bring the body home, and if you did not answer substantially this: “No, I won’t have him there,” or “I would not have him there”?
Upon this question being objected to as immaterial by-plaintiffs’ counsel, defendants’ counsel offered to show by the witness that she did not during the lifetime of her husband and not until this suit was brought and perhaps does-not now estimate the value of her husband’s support or his-life at anything. He also offered to show that she not only rpfused to have the body brought home, not only refused to attend the funeral, but would let no one else of the fam
“6. That said court erred in giving to the jury each of the instructions asked for by these defendants in error which are numbered 1, 2, 3, 4, and 5.”
The following are the instructions complained of:
“ 1. The court instructs the jury that this is a civil action of the plaintiffs against the defendants jointly for damages which the plaintiffs claim to have sustained as the result of drinking intoxicating liquors, which plaintiffs claim to have been sold to and drank by John Bauer, the husband of Frederika Bauer and the father of-Bauer
“2. If from the evidence you find that the said John Bauer bought and drank intoxicating liquors at various-places and from various persons, including all of the defendants, on the thirteenth day of October, 1881, and that he on-that day became drunken from the combined effect of such liquor, and that on that day he died or was killed as the; consequence or effect of such intoxication, then all of these defendants are jointly liable.
“ 3. The jury are further instructed that though they may believe from the evidence that the deceased had bought, or taken liquor at places other than at the saloons of the' defendants, still this fact would constitute no defense to. this action, provided the jury believe from the evidence that the deceased obtained intoxicating liquor at the saloons of the defendants which contributed to his intoxication, and that his death resulted as a consequence of such intoxication.
“4. The court instructs the jury that, if from the evidence they believe that on the day of the death of said John Bauer he became intoxicated and that by reason of such intoxication he came to his death, it shall only be necessary, in order to hold the defendants liable, to prove that, they sold intoxicating liquors to the said John Bauer at a. time when the chinking of such liquor so sold (if any)tended to produce said intoxication or that contributed to such intoxication.
“5. The court further instructs the jury that, in this-case it is not necessary on the part of the plaintiffs to prove that the defendants sold all the liquors to the said John Bauer that may have produced his intoxication, if he was-intoxicated. It is sufficient if it is proved that thejr sold him intoxicating liquor that contributed to such intoxication, and that such intoxication resulted in his death.”
The chief if not the only objection to these instructions-
“ 9. That the said court erred in permitting the attorney of the defendants in error, over the objection of the plaintiffs in error, on the trial of said action, to urge, suggest, and argue to the jury that if the beer it was shown by the evidence the deceased, John Bauer, had got of the plaintiffs in error on the thirteenth day of October, 1881, Avas not sufficient to cause him to be intoxicated at the time of the accident resulting in his death, he must have got intoxicating liquor someAvhere else, of other parties than the plaintiffs in error; and the said court erred in overruling the objection of the plaintiffs in error to said argument, suggestion, and urging; and as well, said court erred in giving his sanction of said argument, suggestion, and urging before the jury.”
Under the other two numbers the said objection is twice repeated in somewhat different language; but I think the point is sufficiently apparent without setting them out more at length.
There was evidence tending to prove that the deceased was intoxicated on the evening of the day both shortly before and immediately after his starting for his home. He was proved to have drank four or five glasses of beer and one or tAvo glasses of cider that afternoon. When about ready to start home, he went Avith the Avitness Albert Bleihl to the bar of August English, one of the plaintiffs in error,, and called for beer for himself and witness. Mr. English, refused to let him have it, for the reason that “he had got enough.” It was also proved that, as he started to drive
In regard to the instructions objected to in this connection, I think the court laid down the law correctly, and ■that the instructions were necessary to give the jury a
No. 12 of the petition in error is as follows: “The said verdict is not sustained by sufficient evidence and is contrary to law.” "With this objection we will also consider the 15th. “That the court erred in excluding from the jury the evidence given by E. A. Allerman, a witness for the plaintiffs in error, and the said court erred in refusing the offer of evidence from this same witness made by these plaintiffs in error to prove that the deceased John Bauer was liable to get lost at any time, when it was light or •dark, and when not intoxicated or drinking;” also No. 16. “ That said court erred in refusing the offer of these plaintiffs in error to prove by Chris. Dahms and John Cum-snider, that the last named witness at the same time of the .accident that resulted in the death of said deceased, John Bauer, being on his road home from Scribner as deceased was, lost his way and wandered a mile from his road and was compelled to stay overnight at the house of the first ■above-named witness because of the darkness of the night;” ■also, No. 21. “That said court erred in sustaining the objection of the defendants in error to the question of the plaintiffs in error put to Aug. Shultz as follows, to-wit: State whether or not you had any trouble to follow the road (referring to a road in the vicinity of Scribner), on the night that the accident occurred that resulted in the ■death of John Bauer?”
The witness F. A. Allerman was’ sworn on the part of plaintiffs in error, and, having stated that he resided about five miles west of Scribner and about four miles north-west of the late residence of the deceased, and had known him for about eight years previous to his death, his examination proceeded as follows:
Q. Do you remember of seeing the deceased, John JBauer, about a year ago?
A. Yes, sir.
A. Yes, sir.
Q. What time of day or night was it?
A. It was about midnight.
Q. How came he to be there; what were the circumstances?
A. Well he called me out of bed, and said he had lost his road, and wanted to know where he was.
Q,. What kind of a night was that?
A. It was a bright, moonlight night.
Q,. Where did he say he was coming from or going to?
Plaintiff objects as immaterial. ■ The defendants offer to show that the deceased was liable to get lost at any time,, whether it was a light or dark night; and further offers to show that he had not drank anything at that time.
Plaintiff objects as before. Sustained and defendants except. Plaintiff objects to the testimony already given by witness, as immaterial, and asks that it be stricken from the record. Sustained and defendants except.
There was no question that it was a dark night. Two or three of the plaintiffs’ witnesses testified to that. But, had it been deemed necessary to prove the character of the night more definitely, that could doubtless have been done by direct testimony. I do not think narratives of the experiences or observations of witnesses on the night in question could be received for that purpose. Says a standard author on the law of evidence: “Great latitude is justly allowed by the law to the reception of indirect or circumstantial evidence, the aid of which is constantly required, rot merely for the purpose of remedying the want of direct evidence, but of supplying an invaluable protection against imposition. The law interferes to exclude all evidence which falls within the description of res inter alios acta, the effect of which is, as will presently be seen, to prevent a litigant party from being concluded or even affected by the evidence, acts, conduct, or declarations of strangers.
Having examined with interest the ingenious theory of the casualty, as contained in the brief of plaintiffs in error, I agree that a sober man in the darkness of that night might have mistaken the north line of posts on Mr. Witts’ farm for the south line, and might also have mistaken the willow fence or hedge for the plum thicket near the bridge; but here, a sober man not finding the bridge would have stopped, while one whose sense of time, space, ;and direction was bewildered by intoxication, might drive tie distance which the deceased is shown to have followed the creek, before driving over the bank. All of this was before the jury, and I do not think any one can say, certainly not I, that they reached the conclusion they did through the influence of passion or prejudice, or that their verdict is contrary to the law, or unsustained by the evidence in the case.
It only remains to consider points seven and eight of plaintiffs in error’s petition in error, which are as follows:
“ 7. That said court erred in refusing to give to the
“ 8. That said court erred in tearing off and refusing to give to the jury the last part of instruction numbered 1, asked for by plaintiffs in error, as follows, to-wit: ‘And unless you find each and all of these four propositions to be established by a preponderance of evidence, it will be your duty to return a verdict in favor of the defendants.’ ”
Instructions numbered 3, 4, and 6, asked for by the defendants in the court below and refused by the court, are as follows:
“ 3. Any defendant that is not shown by a perponderanee of the evidence to have, on the thirteenth day of October, 1881, sold or given intoxicating liquor to the deceased in quantities sufficient to produce intoxication, or when the deceased was under the influence of liquor, is entitled to a verdict in his favor.
“4. Unless you find from'a preponderance of the evidence that the deceased, at the time of missing his road and driving down to the creek where his death occurred, was then in a state of intoxication, it will be your duty to return your verdict in favor of the defendants.
“6. If from the evidence you believe it to be equally probable that on the evening of October 13, 1881, the deceased would have missed his road and the accident have occurred that resulted in his death, if he had not drank intoxicating liquor on that day at all, then it will be your duty to return your verdict in favor of the defendants.”
"We have already seen that the proposition couched in the first of the above instructions, numbered three, is not the law. The liability of the individual defendants does not depend upon his having furnished deceased sufficient liquor on that day to intoxicate him, or while he was under the influence of liquor, but was complete if he furnished him liquor that contributed to his intoxication, provided
As to the second above instruction, numbered four, it is faulty in that it makes it necessary, in order to the liability of the defendants, that deceased should have been proved to have been intoxicated at the very moment of the accident. This is not the law. If he was intoxicated when he lost his way, and lost it in consequence of such intoxication, but afterwards became sober, and in an effort to regain the road drove over the bank to his death, the fatal result was nevertheless caused by his intoxication.
My objection to the last of the above instructions, numbered six, is, that it asks the jury to leave the well-beaten track of fact and proof and wander away into the field of probability. And again, it invites a comparison between a supposed probability and a matter of known fact — a region of investigation which no jury need enter.
The following instruction was also asked by plaintiffs in error:
“ 1., The plaintiffs are not entitled to a verdict for damages against the defendants, or either of them, unless it is established by a preponderance of the evidence, 1, that John Bauer, deceased, was, on the thirteenth day of October, 1881, furnished with intoxicating liquor by the defendants or some one or more of them, or by their clerks acting for them; 2, that deceased was on that day intoxicated; 3, that deceased continued to be intoxicated up to the time of missing his road and driving down to the creek where his death occurred; 4, that his being intoxicated was the cause of his death.”
The above was given, but there was also attached thereto íhé following: “And unless you find each and all of these four propositions to be established by a preponderance of the evidence, it will be your duty to return your verdict in favor of the defendants;” which latter portion was by the court detached and refused to be given to the jury.
As nothing is said in the brief of plaintiffs in error upon the point of excessive damages, I suppose that point to be waived.
Upon the whole I think that the case was fairly presented to the jury, and that their finding is fully sustained by the evidence and the law of the case. The judgment of the district court is affirmed. By the court,
Judgment affirmed.