13 Neb. 431 | Neb. | 1882
This action was brought in the district court of Colfax county by the plaintiff against the defendants to- recover damages sustained by her for the loss of means of support by the intoxication of her husband, which it is alleged was caused by liquor furnished by the defendants. On the trial of the cause in the court below, a verdict was rendered for the defendants, upon which judgment was given. The petition contains twelve counts, the causes of action commencing on the 30th day of November, 1876, and terminating on .the 10th day of October, 1880. The principal causes of action are for loss of time caused by intoxication' of Alexander McDougall, the husband; the whole amount of damages claimed being $5,000. The answers admit that the plaintiff is the wife of Alexander McDougall, and admit that the defendants were licensed saloon keepers at Schuyler, and deny all the other facts stated in the petition.
The action is brought under section 579 of theerim. code of 1873 (Gen. Stat., page 853), which reads as follows: “On the trial of any suit under the provisions hereof, the cause or foundation of which shall be the acts done.or
A large number of errors are assigned in the petition in error, but the only error relied upon is that the verdict is against the weight of evidence. Mrs. McDougall testifies that on or about the thirtieth of November, 1876, she saw her husband and Mr. Kenier standing at the bar of Mr. Giacomini’s saloon drinking, her husband at the time being “pretty badly under the influence of liquor; they had been drinking all the afternoon.” She also states that the same afternoon she saw her husband in the saloon of Peter Rank. She also testifies to the number of times her husband had been intoxicated while in Schuyler between November 30th, 1876, and the commencement of the action, and states a number of instances where he was found intoxicated, generally in connection with the saloon of Mr. Giacomini. A. B. Wilson testified that about October 12th, 1880, he saw Mr. McDougall go into Giacomini’s saloon while drunk and “get a drink, him and Tom McGary.” One Perrine testified that he drank with McDougall on two occasions, at least once in Giacomini’s saloon, in April, the year not being given, when they were all under the influence of liquor. One Stevens testifies that in October, 1880, he saw McDougall go into Giacomini’s saloon in the morning sober, and about two o’clock saw him standing
The attorney for the defendants contends that to entitle the plaintiff to X’ecover the evidence must show: First, That the defendants, or one of them, gave or sold the husband of the plaintiff liquors. Second, That such liquors were intoxicating. This we think is correct. As to the first proposition, it will be seen from the evidence that the proof upon that point is sufficient. Upon the second, we are to consider the facts. The defendants plead that they are licensed saloon keepers in the town of Schuyler. The word “saloon,” which originally meant a large public room or parlor, in this state has acquired a more restricted meaning and is usually applied to a place where intoxicating liqxxors are sold. A licensed saloon keeper in this state, therefore, is a person licensed to sell intoxicating liquors. The proof, too, tends to show that such was the business of both the defendants. This being their business, and their places of business being under their control, if liquor was furnished therein to any person, prima facie it would seem to be done with the consent of the defendants.
While every essential fact stated in the petition which is denied by the answer must be proved by a preponderance of evidence, this need not be done by direct proof. These facts may be shown by cix’cumstantial evidence.
The testimony in this case tends to show that the business of each of the defendants was keeping a saloon where intoxicating liquors were furnished to customers, and also tends to prove at least two counts in the petition. This
Reversed and remanded.