82 Neb. 657 | Neb. | 1908
The defendant A. Radzuweit is proprietor of a licensed saloon at Platte Center, Nebraska. The defendant the Metropolitan Mutual Bond & Surety Company is surety upon his bond, and the defendant Louis Stone is the clerk and manager of said -saloon. Radzuweit resides at South Omaha, Douglas county, Nebraska, and the principal place of business of the Metropolitan Mutual Bond & Surety Company is Omaha, Douglas county, Nebraska. The plaintiff Alice Sullivan, suing for herself and her three minor children, brought this action in the district court for Platte county, Nebraska, against all of the above named parties to recover damages claimed to have been suffered on account of the sale of intoxicating liquors to her husband, Dennis Sullivan, which, it is alleged, caused his intoxication, in consequence of which he lost control of himself and the team which he was driving, and was thrown from the wagon and instantly killed. The jury returned a verdict for the plaintiff, and from a judgment entered thereon the defendants have appealed and filed separate assignments of error.
The defendants A. Radzuweit and the Metropolitan
The Metropolitan Mutual Bond & Surety Company was organized under chapter 23, Comp. St. 1873, being “An act regulating insurance companies.” The purpose for which the corporation was formed and the general nature of the business to be conducted was “to do a general bond and surety business, to guarantee the fidelity of persons holding places of public and private trust, and to become surety on bonds and obligations of persons or corporations, and to become surety on any bond, recognizance or other writing in the nature of a bond, in the same manner that natural persons may do, subject to all the rights and liabilities of such persons, and to do and perform any other acts that are necessary for the promotion of the above described business, and not in violation of law.” Section 55 of our code provides that an action against an insurance company “may be brought in the county where the cause of action or some part thereof arose, or in the county where any contract or portion of a contract entered into by such insurance company has been violated or is to be performed.” If the bonding company is an insurance company within the meaning of this section of our code, then the action was properly brought against said company in Platte county, where the conditions of
Shakman v. United States Credit Co., 92 Wis. 366, 32 L. R. A. 383; People v. Rose, 174 Ill. 310, 44 L. R. A. 124; Tebbets v. Mercantile C. G. Co., 73 Fed. 95, 19 C. C. A. 281; Guarantee Co. v. Mechanics Bank, 183 U. S. 402; American Bonding Co. v. Moran, 80 Ark. 49, 117 Am. St. Rep. 72; American Credit Co. v. Wood, 73 Fed. 81, 19 C. C. A. 265, and authorities referred to in note to the opinion; Van Buren County v. American Surety Co., 115 N. W. (Ia.) 24. We concur in the reasoning of the court in the cases above cited, and are satisfied that the business conducted by the defendant company is in its character that of an insurance company, and that an action brought against a company of that kind may be brought, under the provisions of section 55 of our code, in any county where its contract of insurance has been violated. The action being properly brought against the bonding company in Platte county, any party properly joined in said action could be served in any county of this state under the provisions of section 65 of the code. In this view of the case, we have no -doubt that the defendants Radzuweit and the bonding company were properly sued in Platte county, but whether the defendant Stone was properly joined in this action must be determined from other considerations.
The action against Radzuweit and the bonding company was to recover on the bond which Radzuweit executed as principal, and the bonding company as surety. It was an action on contract. Andresen v. Jetter, 76 Neb. 520; Carter v. Nicol, 116 Ia. 519. Stone was not a party
The defendants Radzuweit and the bonding company insist that the verdict against them is not supported by the evidence, and they ask a reversal on that account. They did not introduce any evidence, and submitted the case upon the testimony offered by the plaintiff. Whatever facts this evidence tends to prove should be regarded as established; the jury having found for the plaintiff.
It is undisputed that Dennis Sullivan, the husband of the plaintiff and the father of the minors, drove his téam to Platte Center in the forenoon of March 8, 1906. About noon he .took a train on the Union Pacific Railroad and went to Columbus. At that time he was so intoxicated that a witness who saw him board the train was fearful that he would meet with an accident. Some time in the afternoon he employed a liveryman at Columbus to drive him back to Platte Center. At that time he had some whiskey in a bottle which he offered to parties in the livery barn, and the contents of the bottle were drank and the bottle thrown away. The young man who drove him to Platte Center testified that he drank nothing on the way, and that he had no liquors in his possession so far as he observed. On reaching Platte Center he visited the saloon of Radzuweit, and drank two glasses of beer. His brother was in the saloon at the time, and, on account of the intoxicated condition of Sullivan, requested Stone,
We are satisfied that the evidence fully supports the verdict of the jury, and that the judgment against Radzuweit and the bond company should be affirmed, and that against Stone reversed, he not being proper party to the action, and we so recommend.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed as lo Radzuweit and the bond company, but reversed as to Stone.
Judgment accordingly.