Howard v. McCabe

• Decision Date: 10 May 1907
• Docket Number: 14,748
• Citation: 112 N.W. 305,79 Neb. 42
• Parties: GEORGE F. HOWARD, APPELLEE, v. STEPHEN MCCABE ET AL., APPELLANTS
• Court: Nebraska Supreme Court

112 N.W. 305

79 Neb. 42

GEORGE F. HOWARD, APPELLEE, v. STEPHEN MCCABE ET AL., APPELLANTS

No. 14,748

Supreme Court of Nebraska

May 10, 1907

APPEAL from the district court for Thayer county: LESLIE G. HURD JUDGE. Affirmed.

AFFIRMED.

M. H Weiss, W. M. Morning and J. J. Ledwith, for appellants.

C. L Richards and Stewart & Munger, contra.

EPPERSON, C. AMES, C., concurs.

OPINION

EPPERSON, C.

The defendant, Stephen McCabe, was a saloon-keeper in the village of Hubbell, in this state, and the other defendant was surety on his liquor bond. One day while the plaintiff, who was a retail dealer in merchandise, was standing in or near his place of business in said village, one Lee Shoup came along, and playfully took the plaintiff's hat from his head and carried it to the saloon. Shortly afterwards plaintiff followed to the saloon, where a playful, but very rough, encounter was forced upon him by Shoup, and terminated in a wrestle in which he was thrown to the floor and one of his legs was broken. This is a suit to recover damages for the injury. The plaintiff had judgment for $ 1,000, and defendants appeal. There was a joint motion for a new trial, and the sole inquiry is as to whether there was reversible error as to the principal.

1. The most important inquiry is as to the sufficiency of the evidence to support the verdict. It is contended by defendant that Lee Shoup is not shown to have been intoxicated. Several witnesses testified as to his intoxicated condition, and of his indulgence in liquor on the afternoon in question in defendant's saloon. It appears that he had taken at least eight drinks of whiskey between 2 o'clock and half-past 4, the time of the injury. He was called as a witness by defendant, and, when asked if he was intoxicated, replied: "It is according to what you would call it." There was some evidence introduced tending to show that Shoup was of a boisterous disposition, with a tendency to indulge in practical jokes, when sober. Conceding his character thus established, we cannot presume that even practical jokers would, when sober, good naturedly fracture the limbs of their friends. The evidence is sufficient to sustain the finding of the jury.

2. It is further contended that the trial court erroneously admitted the Carlisle table. At the trial, one year subsequent to the injury, plaintiff testified that the injured limb continued to annoy him, causing great pain and preventing its full use. Two physicians testified that a complete recovery was improbable. We are of opinion that a sufficient foundation was laid for the introduction in evidence of the Carlisle table. City of Friend v. Ingersoll, 39 Neb. 717, 58 N.W. 281.

3. Plaintiff was, and for three years had, engaged in the mercantile business, giving his personal attention thereto. He was asked relative to the time he was incapacitated on account of the injury: "What would you consider your time and services were worth to you in and about the managing of your business?" Over objection, he was permitted to say what was the fair value of his services and personal attention to his business. This, we think, was proper. Plaintiff's vocation was an ordinary one, and his three years' experience in business rendered him competent to answer the...