Janesovsky v. Rathman

• Decision Date: 17 November 1921
• Docket Number: 21673
• Citation: 185 N.W. 411,107 Neb. 165
• Parties: BARBARA JANESOVSKY ET AL., APPELLEES, v. HENRY RATHMAN ET AL, APPELLANTS
• Court: Nebraska Supreme Court

185 N.W. 411

107 Neb. 165

BARBARA JANESOVSKY ET AL., APPELLEES, v. HENRY RATHMAN ET AL, APPELLANTS

No. 21673

Supreme Court of Nebraska

November 17, 1921

APPEAL from the district court for Dodge county: A. M. POST, JUDGE. Affirmed.

AFFIRMED.

F Dolezal, Cain & Johnson and Hanley & Hopkins, for appellants.

R. B Hasselquist, contra.

Heard before LETTON, DEAN and DAY, JJ., CORCORAN and GOSS, District Judges.

OPINION

GOSS, District Judge.

Plaintiffs the widow and minor children of Ben Janesovsky, brought this action for loss of means of support caused by the death of the husband and father in an automobile accident shortly after midnight of July 19, 1919. The jury returned a verdict for plaintiffs for $ 8,958, and defendants appealed.

This action was brought under the 1917 liquor law (Laws 1917, ch. 187). It expressly repealed sections 3844 to 3894 of the Revised Statutes for 1913, commonly called the "Slocumb Law." The pertinent portions of the present act are as follows:

"Section 52. Any wife, child, parent, guardian, employee, or other person who shall be injured in person or property or means of support, by intoxication of any person, shall have a right of action against any person, association, or corporation, who by himself, his agent, or servant illegally furnished the intoxicating liquor that caused or contributed to the intoxication of such person, for all damages sustained."

"Section 54. On the trial of any suit under the provisions hereof, the cause or foundation of which shall be the acts done or the injuries inflicted, by a person or persons under the influence of liquor, it shall only be necessary to sustain the action to prove that the defendant or defendants sold, gave, or furnished intoxicating liquors to the person or persons so intoxicated or under the influence of liquor whose acts or injuries are complained of, on that day or about that time, when the act was committed or injuries received."

"Section 58. The legislature hereby declares this act to be for the immediate preservation of the public peace, health, and safety, and all its provisions shall be liberally construed for that purpose."

Appellants complain of instruction No. 6, given by the court, in which he told the jury that, if the defendants furnished the deceased "intoxicating liquors which caused or contributed to his intoxication, and that his death occurred by accident caused or contributed to by such intoxication," they should find for plaintiffs. They declare that, under the law, there is no liability unless there is intoxication and injury by that intoxication alone, that all causes of injury, save that of intoxication, are excluded, and that the intoxication must be the proximate cause of the injury, and not merely a contributing cause.

We think that all of section 52, construed with section 54 in the liberal manner enjoined by section 58, justify the instruction given by the trial judge. Under the former law, section 3862, Rev. St. 1913, was identical with section 54 of the present act, and was repeatedly construed when questions arose as to what must be the proximate cause of the damages on account of which suits were brought. Under the old law the traffic was denounced; here the intoxication of a party having dependents is made the basis of suit against any defendant who furnishes liquor to the person so intoxicated or under the influence of liquor, where acts are done or injuries are inflicted by reason of such intoxication. In construing the language of this section it has been held by this court many times that it is not necessary that the liquor furnished be the sole, or even the principal, cause of the injury. A few of the cases are: McClay v. Worrall, 18 Neb. 44, 24 N.W. 429; Cornelius v. Hultman, 44 Neb. 441, 62 N.W. 891; Gran v. Houston, 45 Neb. 813, 64 N.W. 245; Schiek v. Sanders, 53 Neb. 664, 74 N.W. 39; McClellan v. Hein, 56 Neb. 600, 77 N.W. 120; Smith v. Lorang, 87 Neb. 537, 127 N.W. 873.

We conclude that it was not error for the court to give the instruction, and likewise he did not err in refusing the converse requested by defendants.

Complaint is also made of instruction No. 11, as to the finding of the jury concerning the inability of the deceased to protect himself, by reason of intoxication, from the results of...