Houston v. Gran

• Decision Date: 03 January 1894
• Citation: 38 Neb. 687,57 N.W. 403
• Parties: HOUSTON ET AL. v. GRAN ET AL.
• Court: Nebraska Supreme Court

38 Neb. 687

57 N.W. 403

HOUSTON ET AL.

v.GRAN ET AL.

Supreme Court of Nebraska.

Jan. 3, 1894.

Syllabus by the Court.

1. Under the “civil damage act,” the fact that minor children are able to support themselves, and had done so prior to the death of the father, is a proper fact for the jury to consider in ascertaining the amount of damages to be allowed; but it is error to instruct the jury that to the extent that a child had in the past supported himself the law precludes any recovery; the duty to support, and the probability of future support, as well as the fact of past support, being elements for consideration.

2. In such an action, the fact that the deceased, in his lifetime, accumulated property, which, upon his death, went to the plaintiffs, does not go to mitigate damages, but rather to enhance them, and an instruction from which the jury would infer that such facts go in mitigation of damages is misleading and erroneous.

3. 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.

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

Action by Mary J. Houston and others against John Gran and others on a bond. There was judgment for plaintiffs for a part only of their claim, and they bring error. Reversed.Lamb, Ricketts & Wilson, for plaintiffs in error.

G. M. Lambertson, for defendants in error.

IRVINE, C.

Mary J. Houston as widow, and the other plaintiffs in error as minor children, of James H. Houston, deceased, brought this action against John Gran, a saloon keeper, and the sureties upon his bond charging the sale of liquor by Gran to Houston, causing intoxication, in consequence of which intoxication Houston wandered upon the tracks of a railroad, and was killed. There was a verdict and judgment for the plaintiffs in error for $100. Many errors are assigned, of which we shall notice only two.

The court gave the following instruction upon the measure of damages: “If you should find in favor of the plaintiffs, in determining the amount of damages, if any, you find the plaintiffs entitled to, you are at liberty to consider the habits, health, and the estate of the husband of the plaintiff prior to his death, and the profits of his labor, if any, and the condition of his family at such time, as elements in deciding what the amount of the injury or damages may have been from the loss of such support; but in no case of this kind can the amount of damages exceed the value of such support, whatever may be the necessities of such family. If you find for the plaintiffs, and that the plaintiffs have lost the means of support to them by the death of the father, in assessing your damages at the actual loss of support to the plaintiffs, if you find the deceased was a strong, healthy man, you can estimate his expectancy of life upon the Carlisle table, which may have been introduced in evidence before you. This action being brought for loss of means of support which would...