79 Neb. 303 | Neb. | 1907
Margaret Sullivan, on behalf of herself and five minor children, brought suit in the district court for Jefferson county against • Frank P. Conrad and Fred F. Borland, two licensed saloon-keepers in the city of Fairbury, and joined Avith them their respective sureties on their liquor license bonds, to recover for damages to their means of support which, she alleged, Avas caused by the tAvo principal defendants selling intoxicating liquors to John Sullivan, the husband and father of the plaintiffs. In her petition she alleged tliat both of said saloon-keepers sold and furnished to said John Sullivan intoxicating liquors
Complaint is made of certain rulings of the trial court in the exclusion of evidence, and in the giving and refusing of instructions. Plaintiffs offered direct evidence tending to show that the defendant Borland, during the period complained of, had sold and furnished liquors to John Sullivan. Among other things, Margaret Sullivan testified that her husband frequently brought home bottles or flasks of whiskey, which he drank, and one particular bottle, bearing the label, “Whiskey. Sold by Fred F. Borland, Fairbnry, Neb.,” was offered in evidence when she testified that she had seen her husband bring this particular bottle home and drink the liquor therefrom. The court excluded this offer from the consideration of the jury. The defendant Borland and his bartenders testified, denying that they sold any liquors to John Sullivan during the time complained of. In view of the conflict between the testimony of the plaintiffs and the defendants as to whether defendant Borland had sold any liquors to John Sullivan during the period named, we think that any fact or circumstance which would have a tendency to corroborate the testimony of either side was properly admissible. While there was no testimony that anyone saw
Two instructions of the court are particularly complained of. The first one is as follows: “No. 6. In order to return a verdict in favor of plaintiffs for loss of support caused by the death of Sullivan, you must be satisfied by a preponderance of the evidence, not only that Sullivan was intoxicated and that liquors furnished by Conrad and Borland contributed to produce such intoxication, but, further, that his intoxication was a contributing cause to his death. Unless you are convinced that Sullivan’s intoxication contributed to produce the injury which resulted in his death, there can be no recovery in this suit.” By the latter part of this instruction the court excluded from the consideration of the jury any loss or injury sustained by the plaintiffs to their means of support prior to the death of Sullivan. It must be borne in mind that the plaintiffs sue to recover for damages to their means of support from the 3d day of May, 1904, thenceforward, and that they complain of the injury to their means of support prior to, as well as after, the death of the husband and father. The means of support might be only partially impaired prior to his death and Avholly lost thereafter, but the fact that the means of support Avas Avholly cut off did not preclude the plaintiffs from
That part of instruction No. 8 complained of is in the following language: “If Conrad or Borland did not furnish to Sullivan any of the liquor which contributed to produce the intoxication that resulted in his death, then you cannot return a verdict against them or their bondsmen, and you must be satisfied by a preponderance of the evidence that either Conrad or Borland furnished to Sullivan liquors which contributed to such intoxication, or you must find for the defendants, and your verdict can in no event be against either one of the principal defendants and their respective bondsmen, unless you are convinced by a preponderance of the evidence that he sold or furnished Sullivan intoxicating liquors which contributed to the intoxication which in whole or in part caused his death.” This instruction contains the same vice as in
Complaint is also made of instruction No. 5, which is in the following language: “You are instructed that the fact that the witness Joe Burke purchased a pint of whiskey at defendant Conrad’s place of business on the day of the accident, which he subsequently gave to Sullivan, can have no bearing upon Conrad’s liability in this suit, except on the issue of Sullivan’s intoxication at the time of his death, for the reason that Mr. Conrad had no notice or knowledge that Burke intended that Sullivan was to have any part of such liquor. Evidence that Burke did give the liquor purchased to Sullivan was admitted for your consideration only for the reason that it tended to show Sullivan’s intoxication at the time he was killed.” The evidence discloses that on the afternoon preceding the death of Sullivan he drank a single glass of whiskey at the bar of defendant Conrad. It further shows that the witness Joe Burke the same afternoon purchased a pint of whiskey from defendant Conrad, and that Burke gave a part of this whiskey to Sullivan, which Sullivan drank, and that the whiskey so furnished Sullivan by Burke contributed to his intoxication which caused his death. The court permitted the evidence to go to the jury for the purpose of showing Sullivan’s intoxication at the time he réceived the injury that caused his death, and, by the instruction, informed the jury that this could have no bearing upon Conrad’s liability in the suit, in the absence of any evidence that Conrad had notice or knowledge that the liquor bought by Burke was intended for Sullivan. This presents a phase of our liquor law that, so far as we are aware, has not been determined by this court; that is, whether or not a saloon-keeper is liable to one who uses intoxicating liquors and by reason of such intoxication is injured, when the injured person did not obtain the intoxicating liquors from
There are other errors complained of; but, since this cause must be reversed for the reasons heretofore given, and the other errors complained of do not appear likely to arise upon a new trial, we refrain from considering them.
For the reasons given, we recommend that the judgment of the district court be reversed and the cause remanded for a new trial.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court .is reversed and the cause remanded for further proceedings.
Reversed.