Gran v. Houston

• Decision Date: 18 September 1895
• Citation: 45 Neb. 813,64 N.W. 245
• Parties: GRAN ET AL. v. HOUSTON ET AL.
• Court: Nebraska Supreme Court

45 Neb. 813

64 N.W. 245

GRAN ET AL.

v.HOUSTON ET AL.

Supreme Court of Nebraska.

Sept. 18, 1895.

Syllabus by the Court.

1. Where, in order to fairly and intelligibly present all the issues in a case to the jury by the instructions, it becomes necessary to repeat a proposition, its repetition, in proper connection with other facts or principles involved, is not erroneous.

2. It is not ground for the reversal of a case that the trial court repeated a proposition of law in its instructions, where it does not appear that the effect was to perplex or mislead the jury.

3. Within the meaning of the words “all damages,” in what is known as the “Liquor” or “Slocum” law (Comp. St. 1895, c. 50, p. 683), and required by the law to be a condition of the bond given by each person licensed to sell intoxicating liquors, is included the loss of means of support of a wife and the children of the husband, who, by drinking liquors sold or given to him in whole or in part by the vendor principal in the bond, or his agents or employés, becomes intoxicated, and, by the intoxication, disabled or disqualified, physically or mentally, either partially or totally, for labor; also, his death, caused by the intoxication.

4. The action accorded by this act for the death caused by intoxication is not an action, proper, for the death, but for the loss of means of support, resulting from the death.

5. In an action upon the bond, the liability of the sureties is coextensive with that of the principal, and, to the extent of the sum therein stated, they are bound for the payment of all damages adjudged against him; and testimony which, in such action, establishes his liability, fastens it upon the sureties.

6. “It is a rule of interpretation universally accepted that in giving construction to a statute the court will consider its policy, and the mischief to be remedied, and give it such an interpretation as appears best calculated to advance its object by effectuating the design of the legislature.” Wilber v. Paine, 1 Ohio, 255.

7. “In an action on the bond of a saloon keeper, the first essential to be shown is the disqualification to support those thereto entitled, caused or contributed to by sales of intoxicating liquors to one upon whom legally devolves the duty of furnishing such support; and this disqualification may be either partial in effect, or limited in duration by reason of physical disability, or it may become complete, as by death.” Rule announced in first paragraph of Chmelir v. Sawyer, 42 Neb. 362, 60 N. W. 547, approved and followed.

8. Where there is no controversy in the evidence as to the existence of a particular fact, an instruction given, in which there is an assumption of its truth, will not furnish sufficient reason for a reversal of the judgment.

9. An instruction given in regard to the rule for estimating damages held correct and proper, to the extent that it stated the rule; and further, that, if the defendants desired a more extended or explicit statement upon any portion of the subject therein embraced, it should have been prepared and presented to the court, with a request that it be read. Failure to do so precludes error.

10. An objection to instruction numbered 16, in which it was stated that certain admissions were made in the answer, held not well founded.

11. Objections to the language employed in certain of the instructions examined, and held not tenable.

12. The fact that the wife consented to or acquiesced in the sale or gift of intoxicating liquors to the husband is no defense or bar to an action for damages by the wife, and in behalf of her minor children, for loss of means of support through the disability or disqualification of the husband for labor, caused by drinking the intoxicating liquors.

13. In order to be available in an action, new matter constituting a defense must be pleaded in the answer. It cannot be introduced under a general denial.

14. Refusal to give instructions requested on the question of the proximate cause of the death of a person, alleged to have been caused by intoxication, held not erroneous, within the rule announced in McClay v. Worrall, 18 Neb. 44, 24 N. W. 429;Sellars v. Foster, 27 Neb. 125, 42 N. W. 907; and Cornelius v. Hultman (opinion filed April 4, 1895) 62 N. W. 891.

15. The testimony of jurors in relation to matters which are essentially inherent in the verdict is incompetent, and will not be received to impeach the verdict.

16. The verdict, in its amount, when viewed in connection with the evidence, held to show that it was not the result of the influence of passion and prejudice, but sustained by the testimony.

17. The action of the court in excusing jurors held not erroneous.

18. Where an order has been entered excluding the witnesses, and a witness is called, who, it appears, has disobeyed the order, and has been present in court during the examination of a prior witness, and it further appears that the evidence of the witness called will be upon a branch of the case entirely different and distinct from that testified upon by the witness preceding him, and has no connection in substance therewith, and it does not appear that the party desiring to use the witness was at fault in any manner for his disobedience of the order of exclusion, it is not error for the court to allow the witness to testify.

19. In order to render an alleged error in the admission of testimony available in a review of a case by this court, the record must disclose an objection made in the trial court to the introduction of the particular piece of testimony, a ruling obtained thereon, and, if adverse, an exception taken.

20. Where it is assigned for error that there was misconduct of attorney for the prevailing party during the course of argument to the jury, consisting of language used or statements made prejudicial to the rights of the adverse party, the attention of the trial court must be called to the language or statements by an objection, and, if overruled, an exception taken, and this portion of the proceedings incorporated in the bill of exceptions. It will then be reviewed by this court; otherwise not.

21. Where, so far as the evidence discloses, no one was present at the time of the death of deceased, held, that the evidence of the coroner, who was also a physician and surgeon, in which he stated his opinion on the subject, was admissible to show the manner of death.

22. Where a question is asked of a witness, and his answer, which is responsive to the question, is received without objection, and motion is then made by counsel to strike out the evidence contained, on the ground of its incompetency, it is discretionary with the court whether it will sustain the motion or not.

23. “The fact that a saloon keeper, prior to the sales complained of in a civil damage case, had instructed his servants not to sell liquor to the deceased, is inadmissible in evidence, as not tending to prove that such sales were not in fact made.” The rule announced in the third paragraph of the syllabus in Houston v. Gran, 38 Neb. 687, 57 N. W. 403, followed and adhered to.

24. Evidence which tended to prove that the money earned by the husband while living was the source of, and devoted to, the support of the wife and children, held admissible.

25. The ruling of the court as to the admissibility of certain evidence during the cross-examination of one of the defendants in regard to his connection with the saloon business examined and approved.

26. A motion for new trial will not be granted on account of newly-discovered evidence, unless it would be sufficient to render clear what was before doubtful, or of so controlling a nature as to probably change the verdict.

27. The statements of an affidavit in relation to the misconduct of a juror examined, and held insufficient.

Error to district court, Lancaster county; Strode, Judge.

Action by Mary J. Houston and others against John Gran and others. Plaintiffs had judgment, and defendants bring error. Affirmed.

G. M. Lambertson, for plaintiffs in error.

Ricketts & Wilson, for defendants in error.

HARRISON, J.

On the 5th day of December, A. D. 1889, Mary J. Houston, for herself, and on behalf of her minor children, instituted this action in the district court of Lancaster county against John Gran, a retail dealer in liquor in the city of Lincoln, and the sureties on his bond, Jerry Harrington and Thomas Carr. In the petition it is alleged: That on the 30th day of March, 1889, John Gran was engaged in the business of selling malt, spirituous, and vinous liquors in the city of Lincoln, under a license authorizing him to conduct such a business, granted to him on or about the 11th day of April, 1889, by the proper authorities of the city. That on March 19, 1889, John Gran, together with Thomas Carr and Jerry Harrington, as his sureties, entered into a bond to the state of Nebraska, in the sum of $5,000, and which bond contained the conditions required by our statutory law regulating the execution of such bonds. “That on the 13th day of March, 1889, the plaintiff Mary J. Houston was, and for more than fifteen years prior thereto had been, the wife of one James Houston, now deceased, and that said Houstons were residents of the city of Lincoln, Lancaster county, Nebraska, and the other plaintiffs are their lawful children. Fourth. That on the 30th day of March, 1889, the said James H. Houston, deceased, her husband, and the father of the children plaintiffs, became greatly intoxicated, and continued in a fit of intoxication the whole of the said day and evening of the 30th day of March, 1889, and that he spent the afternoon and evening of said day in the saloon and place of business of the defendant John Gran, in said county and said state. Fifth. That the defendant John Gran sold, gave, and furnished to him, the said James H. Houston, the liquors that caused his intoxication on the said 30th day of March, 1889, and furnished him the said liquors...