97 Neb. 387 | Neb. | 1914
This action was commenced by plaintiff, tbe wife of James Yechout, against defendant Tesnohlidek and one Macek, and the surety on their bonds, as saloon-keepers in the city of South Omaha, for damages growing out of the sale of intoxicating liquors to the husband of plaintiff. A jury trial was had, which resulted in a verdict in favor of defendant Macek and against plaintiff, and in favor of plaintiff and against Tesnohlidek and his surety for $2,000. Judgment of dismissal ivas rendered in favor of Macek, and judgment in favor of plaintiff and against defendant Tesnohlidek and his surety for the said sum of $2,000, from which he and his surety appeal.
The action was for loss of support and the debauching of plaintiff’s husband and the father of their three minor children, who joined in the action as plaintiffs by their next friend, Mrs. Yechout. The petition sets out that from the 1st day of May, 1909, to May 1, 1910, arid during the next year until May 1, 1911, defendant Tesnohlidek was a licensed saloon-keeper, with defendant, the Bankers
Defendant Tesnohlidek filed his separate answer, in which he admitted the allegations as to his being a duly licensed saloon-keeper during the time stated, and that he gave the bond with surety as alleged, and denied all other allegations of the petition. The Bankers Surety Company answered by way of a general denial, and alleged the unconstitutionality of the statute upon which the action' is founded,-for the reason that the statute violates the provisions of subdivision 3, sec. 8, art. I of the constitution of the United States, wherein it is provided that congress shall have power to regulate commerce among the several states, and also violates that portion of section 1, art. XIY of the constitution of the United States, which provides: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It is also alleged that the law is unconstitutional for the reason that it violates section 3, art. I of the constitution of this state, also portions of section 15, art. Ill thereof.
2. It is next contended that the trial court erred in giving the eighth instruction to the jury. The instruction is as follows: “You are further instructed that it is not pleaded in any of the defendants’ answers that plaintiffs consented or acquiesced in the sale or furnishing of liquor by defendant saloon-keepers to James Yechout, or that Mary Yechout herself furnished liquor to her husband, and you are therefore instructed that this would not be a defense to this action, and you are hereby directed to disregard all testimony upon this question.” The law of this instruction is fully settled in Gran v. Houston, 45 Neb. 813, 830, wherein it is said: “The consent or acquiescence of Mrs. Houston to the giving or sale of liquors to her husband was matter constituting an affirmative defense, even if it- could be allowed in any degree as a de
3. It is next insisted that the court erred in refusing to give instruction numbered 5 asked by defendant insurance company. The instruction is as follows: “You are instructed that there can .be no recovery by the plaintiffs herein for loss of means' of support if you should find that there has been no diminution thereof since May 1, 1909.” There was evidence that there was a loss of means of support after the date named in the instruction, but we think this could make no difference under the provisions of sections 3859 and 3862, Rev. St. 1913, of the act known as the “Slocumb Law.” While it might be proper for the jury to consider all the circumstances of the case, the fact that the drinker was disqualified before a certain date could not justify the seller of the liquor in keeping him in that condition during a later time.
A number of errors are based upon the refusal to give instructions, all of which we have examined, but find that the questions presented have all been passed upon by this court, and are satisfied that there is no merit in the contentions.
There is no discussion in appellants’ brief of why or how the law under which this action is brought is violative of either the constitution of the United States or of this state. Since both the supreme court of this state and of the United States have passed upon the question, we are not called upon to review the many decisions therein. The
Finding no error in the record justifying a reversal of the judgment, it is
Affirmed.