Selders v. Brothers
Selders v. Brothers
Opinion of the Court
\ ction in the district court for Lancaster county brought by the plaintiff in behalf of herself and her six minor children against the principal defendants/ -who were licensed saloon-keepers in the village of Havelock, and the'surety on their boqds, for the loss of her means of support caused by the sales of intoxicating liquors to her husband. The plaintiff had! the verdict and a judgment for $2,000, and defendants have appealed.
Appellants contend that plaintiff’s petition does not state facts sufficient to constitute a cause of action, and discloses upon its face that she has sustained no damages by reason of the sales of intoxicating liquors complained of. The petition alleges, among other things, that the principal defendants obtained their licenses on or about the 21st of April* 1905; that they were engaged in the business of conducting licensed liquor saloons for the sale of intoxicating liquors in the village of Havelock from that time until about the 21st of April, 1906; that the sales of intoxicating liquors complained of occurred between the 1st of January, 1906, and the 21st of April of that year; that for more than a year and a half prior to the commencement of the action plaintiff’s husband had acquired the habit of intoxication; that the liquor furnished him by the principal defendants contributed to his intoxicated condition, and rendered him unfit and unable to work and earn support for plaintiff and her minor children; that such sales contributed to the forming of her husband’s uncontrollable appetite for strong drink to such
In Acken v. Tinglehoff, 83 Neb. 296, it was said: “The mere fact that the plaintiff’s husband had used liquor excessively prior to the time that defendants sold to him is not sufficient to defeat the plaintiff’s action. We are cited to Stahnka v. Kreitle, 66 Neb. 829, in support of defendants’ contention that they are not liable for damages resulting from a like traffic before they engaged in the business. This projjosition is sound but it cannot control this case, because the plaintiff does not seek to recover for her nonsupport prior to the time the defendants engaged in business. By considering the evidence in the light most favorable to the defendants, the fact still remains and stands out boldly that the wrongful conduct of the defendants contributed to the condition of the plaintiff’s husband as alleged in the petition and proven at the trial. This being the situation, the defendants are liable.”
It has also been held that the liquors furnished by a defendant need not be the sole cause of an alleged injury in order to permit an aggrieved party to recover. In the case at bar the record fairly discloses that the plaintiff’s husband was a man about 45 years of age; that lie was a stone mason by trade; a man of excellent health, industrious, and a competent workman, and earned, when employed, from $4.50 to $5 a day; that on and prior to the 1st of April, 1905, he had become somewhat addicted to the use of intoxicating liquors; that the plaintiff, in order to protect him and to work his reform, if possible, served notice upon the saloon-keepers of the city of Lincoln not
The defendants further contend that there is a fatal variance between the proof and the allegations of plaintiff’s petition. The plaintiff was permitted to prove that in May, 1905, she had prohibited the saloon-keepers in Lincoln from selling her husband intoxicating liquors, and for a time thereafter his habits with reference to drinking improved; that he had contributed to the support of his family, and, while he had been addicted to the use of intoxicating liquors, yet at the time of the alleged sales he
Defendants also contend that the district court erred in instructing the jury as follows: “In a casé like that at bar the defendant saloon-keepers and their bondsmen are liable, not only for damages resulting directly from the acts of said saloon-keepers, but for all damages to which such acts contribute. So in this case if you find from the evidence that the saloon-keepers in question sold intoxicating liquors to plaintiff’s husband, and if you further find from the evidence that he was thereby wholly or partially disqualified to earn a support for his family, or that on account of drunken and dissolute habits acquired in whole or in part as a result of the intoxicating liquors so furnished to him he failed in whole or in part to support them, then such saloon-keepers, together with their sureties, are liable for such injury, to plaintiff’s means of support for herself and said six minor children as shall result therefrom, and such liability continues, not only during the period of time covered by the license, but during the period of time which you shall find from the evidence such disqualification will be permanent, even though it shall continue beyond the year or years covered by said bond.”
In Wardell v. McConnell, 23 Neb. 152, where a like
Complaint is made of the sixth paragraph of the instructions. This instruction is so long that for want of space we decline to quote it. It is sufficient to say that it has been approved in the numerous cases bearing upon the question involved in this controversy which we have heretofore decided.
Finally, it is contended that the judgment is excessive, and it is not supported by the evidence. We find that the record contains competent evidence which tends to show that the plaintiff’s husband, since the sales to him of intoxicating liquors complained of, has become broken down in health and unable to perform hard labor; that prior to that time his health was good; that he had earned from
A careful review of the record satisfies us that it contains no reversible error; that the defendants were accorded a fair trial, and the judgment of the district court is therefore
Affirmed,
Reference
- Full Case Name
- Eva Selders v. John S. Brothers
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