Dolan v. McLaughlin

• Decision Date: 19 November 1895
• Parties: DOLAN ET AL. v. MCLAUGHLIN ET AL.
• Court: Nebraska Supreme Court

46 Neb. 449

64 N.W. 1076

DOLAN ET AL.

v.MCLAUGHLIN ET AL.

Supreme Court of Nebraska.

Nov. 19, 1895.

Syllabus by the Court.

1. Where in a petition it was alleged, and the proofs therewith correspond, against two licensed saloon keepers and the sureties on their bonds, that the surviving members of a family had been deprived of their means of support by the death of the head of the family, which death took place while such head of the family was in a deranged and stupid state, superinduced by periods of intoxication at intervals extending over a period of five months' time, the last of which periods of intoxication had been two weeks after any liquor had been sold, and that to some of the fits of intoxication the principals contributed by sales of liquor, held a misleading error to instruct the jury that “where several liquor dealers furnish intoxicating liquors, the use of which results in intoxication and damage, each dealer is equally liable, and that in case one dealer furnishes the first draught while the user thereof is perfectly sober, and the liquor which intensified and completed the intoxication was furnished by other parties, the dealer furnishing the first draught is equally liable with the others for the damage resulting from such intoxication.”

2. In an action for damages against licensed liquor dealers and the sureties on their bonds for loss of support caused by the death of the head of the family, alleged to have been brought about by intoxicating liquors sold by such dealers, where there had been introduced evidence tending to show that at least one sale was of a liquid not intoxicating, it was erroneous to instruct the jury that “where it is shown that the person was sold or furnished liquor at a licensed saloon the presumption is that such liquor was intoxicating.”

Error to district court, Gage county; Babcock, Judge.

Action by Rosa McLaughlin and others against William H. Dolan, J. H. Reynolds, E. P. Reynolds, Jr., and others. Plaintiffs had judgment, and defendants named bring error. Reversed.T. M. Marquett, E. N. Kauffman, and Lambertson & Hall, for plaintiffs in error.

A. Hazlett and Griggs, Rinaker & Bibb, for defendants in error.

RYAN, C.

This action was originally brought in the district court of Gage county by Rosa McLaughlin on her own behalf, as widow of John McLaughlin, and on behalf of the minor children of said John McLaughlin. The defendants were the members of the firm of John J. Patterson & Co. and the sureties on the bond of said firm, given in compliance with the requirements of chapter 50, Comp. St. Subsequently an amended petition was filed, in which, as defendants, were added the names of William H. Dolan, as principal, and J. H. Reynolds and E. P. Reynolds, Jr., as sureties on a bond of the same general nature as that originally sued upon. The manner in which the principals named caused damage to the plaintiff and her children is thus described in the amended petition: “On the 20th day of October, 1890, and on divers other days thereafter, before and up to the 23d day of March, 1891, the said John McLaughlin, now deceased, became intoxicated and continued to drink heavily, and frequently went into a fit of intoxication and drunkenness for ten days in succession, and thereby spent his time on these days in the saloons and places of business of said defendants John J. Patterson & Co. and William H. Dolan, above named, in the city of Wymore, sometimes being in the place of business of the said John J. Patterson& Co., and at other times in the place of business of the said William H. Dolan, and would frequent the business houses of the said defendants, respectively, many times during the day and days above mentioned; and during said time and between the said dates the said John McLaughlin was addicted to the immoderate use of intoxicating liquors, and the said defendants John J. Patterson & Co. and the said William H. Dolan during all of said times did sell, give, and furnish intoxicating liquors to the said John McLaughlin, to such an extent and in such quantities that the said John McLaughlin became and was during all of said time an habitual drunkard, and was continually in a state of intoxication, and was thereby rendered unfit to perform labor and was unable to carry on his business, and squandered his money, and did not furnish these plaintiffs with any means of support; and the said John J. Patterson & Co. and William H. Dolan, above named, furnished and continued to furnish liquor to said John McLaughlin in such quantities so that he became intoxicated. That on the 26th day of November, 1890, the said John McLaughlin, by reason of having drank liquor in the business houses of the said defendants above named, became beastly drunk and wholly helpless, and unable to care for himself in said intoxicated condition, and prior to and subsequent to said 26th day of November, 1890, by reason of said John McLaughlin having received intoxicating drinks from the said defendants above...