Bloedel v. Zimmerman

• Citation: 41 Neb. 695,60 N.W. 6
• Parties: BLOEDEL ET AL. v. ZIMMERMAN ET AL.
• Decision Date: 18 September 1894
• Court: Nebraska Supreme Court

41 Neb. 695

60 N.W. 6

BLOEDEL ET AL.

v.ZIMMERMAN ET AL.

Supreme Court of Nebraska.

Sept. 18, 1894.

Syllabus by the Court.

1. An assignment in a petition in error as to the admission or exclusion of testimony, which does not indicate what testimony out of a great mass is referred to or intended, is too indefinite to be considered.

2. An instruction not excepted to at the time it was given cannot be complained of in the supreme court.

3. Held, that the defendants' first request to charge was not warranted by the evidence, was misleading, and should not have been given.

4. Where, by reason of intoxication, a father is rendered incapable of providing for his family, his minor children may maintain an action for loss of means of support, caused by reason of the intoxication of the father, against the persons furnishing the intoxicating liquors, and the sureties on his liquor bond.

5. The verdict held to be against the evidence.

Error to district court, Sarpy county; Clarkson, Judge.

Action by Agnes Bloedel and others, by Amelia Bloedel, their next friend, against John Zimmerman and others, to recover damages for injury to plaintiffs' means of support, caused by the sale of intoxicating liquors to the father of plaintiffs. There was a judgment entered on the verdict of a jury in favor of defendants, and plaintiffs bring error. Reversed and remanded.Moriarty & Langdon and Anthony E. Langdon, for plaintiffs in error.

James P. Grove, for defendants in error.

NORVAL, C. J.

This action was brought by the plaintiffs in error, Agnes Bloedel, Matilda Bloedel, and Alexander Bloedel, by Amelia Bloedel, their next friend, against John Zimmerman and several saloon keepers in the village of Papillion, and the sureties on their liquor bonds, to recover damages for injury to the plaintiffs' means of support, resulting from the selling to their father of intoxicating liquors. The petition, after alleging that the plaintiffs are the minor children of Andrew Bloedel, the execution and delivery of the bonds sued on, and the issuing and delivery of the licenses to the principals in said bonds, avers, in substance, that each of said saloon keepers sold and gave malt, spirituous, and vinous liquors to said Andrew Bloedel, at the times therein stated, and during the existence of their licenses; that said Bloedel has become an habitual drunkard through the excessive use of intoxicating liquors so furnished as aforesaid; that said plaintiffs have no means of support except that furnished by their father; that prior to the year 1886 said Andrew Bloedel was industrious and temperate, and that, by virtue of said furnishing of said liquors to him, he thereby became unable to support the plaintiffs, and that they were thereby damaged in the sum of $3,000, for which amount plaintiffs pray judgment. The defendants, for answer to the petition, deny each and every allegation therein, except that they have been engaged in the saloon business, and gave the bonds set out in the petition.

There was a verdict for the defendants, upon which judgment was rendered by the court. The plaintiffs prosecute error. Several rulings of the trial court on the admission and rejection of testimony are urged in the brief of counsel as grounds for reversal, but the rulings complained of and pointed out in the brief cannot be reviewed by this court, for the reason that the same are not assigned with sufficient particularity in the petition in error, they there being assigned in the following language: “(4) The court erred in overruling the objections made by the plaintiffs to testimony offered by defendants, which ruling of the court was duly excepted to at the time. (5) The court erred in sustaining objections made by defendants to evidence offered by the plaintiffs, which ruling was excepted to at the time.” The bill of exceptions discloses that numerous objections and exceptions were taken...