Hauth v. Sambo
| Decision Date | 01 July 1916 |
| Docket Number | 18886 |
| Citation | 158 N.W. 1036,100 Neb. 160 |
| Parties | THERESA HAUTH ET AL., APPELLEES, v. JOHN SAMBO ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Sarpy county: JAMES T. BEGLEY JUDGE. Affirmed.
AFFIRMED.
A. S Ritchey, W. R. Patrick and I. J. Dunn, for appellants.
W. W Slabaugh, John W. Battin and A. E. Langdon, contra.
Action by the widow and minor children of Joseph Hauth, deceased, to recover damages for his death, which it is alleged was contributed to by intoxicating liquors furnished him by defendant Sambo during the night immediately preceding his death. Sambo was a retail liquor dealer in the city of Omaha, and defendant Illinois Surety Company was surety on his bond. The action was instituted and service obtained upon the surety company in Sarpy county, and summons sent to and served upon Sambo, the principal, in Douglas county. The jury returned a verdict against both defendants for $ 11,400. Judgment was entered against the principal for the full amount of the verdict, and against the surety for $ 5,000, being the amount of the penalty fixed in the bond. Defendants appeal.
A number of errors are assigned, which will be considered in the order in which they are argued in the brief.
Is the verdict sustained by the evidence? The evidence as to whether or not Hauth had been drinking in Sambo's saloon during the night preceding his death, when considered in connection with the circumstances shown, cannot be called conflicting. The period of time covered by the evidence is from about 8 o'clock in the evening of September 21, 1912, until early in the morning of the next day. Plaintiff testified that Hauth was in Sambo's saloon about 8 o'clock in the evening; that others were in there drinking, and Hauth was there with them. She does not testify positively that she saw her husband drink, but she saw beer on the bar at the time, and a fair inference from her testimony is that she saw the others drinking, Her testimony further shows that about 10 o'clock her husband returned to the house, which was within sight of the saloon, got his gun, and returned to the saloon, with the declared intention of going hunting early in the morning; that when he left home at that hour he was not drunk; that he looked all right to her. The evidence clearly establishes the fact that from the time Hauth returned to the saloon at 10 o'clock until 2 or 3 o'clock in the morning, when he, in company with John Drabeck, Sambo's bartender, and one Dan Kennedy, started on their hunting trip, Sambo's saloon was the scene of a drunken carousal, and that during all of that time Hauth was a member of the party; that some time during the night he and one Veit became involved in a controversy which they adjusted by a fight outside of the saloon. The story told by some of defendants' witnesses on the stand, that Hauth was sober when he and his two companions started on the hunting trip at 2 o'clock in the morning, is too incredible, in the face of the facts shown, for any jury to believe. As we view the evidence, and as the jury unquestionably viewed it, it clearly establishes the fact that Hauth was intoxicated when he was struck and killed by the locomotive; that this intoxication was produced by liquors obtained in Sambo's saloon, and was the cause of his losing his life.
The second point argued is that the court erred in overruling the demurrer of each of the defendants on the ground of misjoinder of causes of action. The contention is that there was one cause of action stated against the defendants jointly on the bond, and an additional one against the defendant Sambo upon his liability as a retail liquor dealer, fixed by statute, regardless of and in addition to his contract obligation set forth in the bond. Section 3849, Rev. St. 1913, is as follows:
This section of the statute is clear and unambiguous. It makes the furnishing of the bond a condition precedent to the obtaining of a license to sell intoxicating liquors. It is, in every sense of the word, an integral part of the application for a license. The surety, who signs such a bond, knows at the time of doing so that the filing of the bond is one of the necessary conditions which must be complied with before the license is issued. The surety is, therefore, in every true sense of the word, a party to the application. He is charged with knowledge of the fact that the signing of this bond renders him subject to be sued upon it for the use of any person, or his legal representative, who may be injured by reason of the selling or giving away of any intoxicating liquors by the person so licensed, or by his agent or servant. He knows that the bond is conditioned that his principal will not violate any of the provisions of the chapter of the statute relating to the issuance of such licenses, and that the principal will pay all damages, fines, penalties and forfeitures which may be adjudged against him under the provisions of this chapter. He therefore agrees that, to the amount stated in the bond, he will stand liable to pay all such damages, fines, penalties and forfeitures which may be adjudged against his principal, and this, too, without any condition or reservation that his principal must be first proceeded against. He, in fact, to the amount stated in the bond, makes himself a joint and several principal as to all persons who may be injured by reason of the selling or giving away of any intoxicating liquors by his principal himself, or by such principal's agent or servant. It will be seen from this that a surety on a liquor bond occupies a different relation to such a bond than that occupied by a surety upon ordinary bonds, and the rules applicable to an ordinary bond cannot be applied to a liquor bond with the same strictness with which they are applied to ordinary bonds.
We concede that under the rules governing recovery in actions on ordinary bonds a judgment in excess of the penalty of the bond would be erroneous. In Andresen v. Jetter, 76 Neb. 520, 107 N.W. 789, and Sullivan v. Radzuweit 82 Neb. 657, 118 N.W. 571, the implication is that an action upon a saloon-keeper's bond is governed by the same principles as one upon an ordinary bond. In those cases, however, it will be seen that the distinction under consideration here was not presented or discussed. Where the distinction has been considered, we think the courts are generally holding that the rule in an action on ordinary bonds does not apply in actions upon liquor bonds. In the opinion by Maxwell, J., in Jones v. Bates, 26 Neb. 693, 42 N.W. 751, it is said: In Wardell v. McConnell, 23 Neb. 152, 36 N.W. 278, we held that principals and their sureties upon license bonds are liable to an action for damages jointly with the principals and sureties upon other bonds of a like character, and that sureties upon the bond of a licensed vendor of intoxicating liquors are liable, not only for the damages resulting directly from the acts of their principals, but for all damages to which such acts contribute. On page 159 it is said: "We recognize this as a radical departure from the general law governing principals and sureties, but that it is in accordance with the provisions of the chapter referred to, we entertain no doubt." In Horst v. Lewis, 71 Neb. 365, 98 N.W. 1046, we held that persons engaged in selling intoxicating liquors under a license in this state are jointly and severally liable for all damages arising from such traffic, to the causes of which they have contributed, and that such liability extends to the sureties upon their bonds; that all such persons and their sureties may be joined as defendants in a single action to recover damages. In the opinion, by Mr. Commissioner Ames (p. 367), it is said: "Defendants in such cases are treated both by the statute and by the foregoing decisions as joint wrongdoers, but the statute also creates a right of contribution among them, an element unknown to the common law relative to joint tortfeasors." (p. 368) ...
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