137 Minn. 98 | Minn. | 1917
Plaintiff brought this action upon a saloonkeeper’s bond to recover damages for the death of her adult son, Adolph Wunsewich, who was killed by a railroad train while intoxicated. At the close of the evidence, defendants moved for a directed verdict in their favor on the ground that plaintiff had failed to procure leave of court to
Defendants made a preliminary motion to dismiss the appeal under the rules for the failure of plaintiff to serve or print the evidence. Plaintiff has raised no questions which require a consideration of the evidence. She rests her appeal upon the contention that the court erred in holding that her failure to obtain leave of court to bring the suit entitled defendants to a verdict. The rules require her to serve and print only so much of the record as will fully and clearly present the questions raised by her. This she has done. If defendants deem other parts of the record necessary to properly present all the questions involved, the rules authorize them to print a supplemental record, or to refer to the folios or pages of the settled case on file. The motion is denied.
The first question is whether it was incumbent upon plaintiff to make an application to the court and obtain leave to sue upon the bond before she brought her suit.
The statutes require a plaintiff to procure leave of court before bringing suit upon certain statutory bonds. A plaintiff, other than the state or body politic to whom the bond is given, must procure leave of the district court before bringing suit upon the official bond of a public
Defendants insist that the evidence is not sufficient to make a question for the jury as to whether there had been a breach of the bond, and invoke the well-established rule that a correct decision will not be reversed because it was based on a wrong reason. We have read the evidence attentively and conclude, as claimed by defendants’ counsel, that the present question narrows down to this: Is the evidence sufficient to make a question for the jury as to whether Wunsewich’s condition at the time of the accident was attributable to intoxicating liquor sold to him by defendant Olson or his bartender while he was intoxicated ? The evidence is conflicting, but we are not now concerned with the weight of the evidence. The question here is whether the jury, if they had believed the evidence supporting plaintiff’s contention and had disbelieved the evidence opposed thereto, could reasonably have found that such sales had been made, and that the accident had resulted in consequence of the furnishing of the liquor illegally sold. There was only the one saloon in the village. Wunsewich was struck by the locomotive at 9:23 in the forenoon of August 7, 1915. There is evidence from which the jury could find that he was badly intoxicated the evening before the accident and at the time of the accident, and that he had purchased and drank liquor in the saloon on the morning of the accident; and we think it would be permissible for the jury to infer from the evidence on the part of plaintiff, if they believed it, and from the facts and circumstances disclosed by the evidence, that his condition at the time of the accident was in part attributable to liquor furnished him in the saloon while he was intoxicated, and that such condition was the proximate cause of the accident. The complaint sufficiently alleges such facts as a basis for the cause of action, and we think that the case should have been submitted to the jury.
Order reversed.