Jones v. Bates

• Decision Date: 13 June 1889
• Citation: 42 N.W. 751,26 Neb. 693
• Parties: JONES ET AL. v. BATES ET AL.
• Court: Nebraska Supreme Court

26 Neb. 693

42 N.W. 751

JONES ET AL.

v.BATES ET AL.

Supreme Court of Nebraska.

June 13, 1889.

Syllabus by the Court.

1. A married woman and her minor children, constituting one family, may join in an action for loss of means of support caused by the intoxication of the husband and father against those who furnished him intoxicating liquor.

2. Such action may be brought against the persons furnishing such liquor personally, and not on their bonds. The cause of action arises from injury occasioned by furnishing the liquor. The bond is given as an indemity for the payment of such damages, but the plaintiff, if he sees fit, may sue the saloon-keeper alone, and not his sureties.

3. All persons who furnished intoxicating liquors which contributed to the intoxication may be joined as defendants.

4. A license to sell intoxicating liquors protects the licensee only against prosecutions by the state. It is no protection in an action for injuries inflicted on A. by B. by reason of intoxicating liquors furnished to B. which contributed to his intoxication.

5. Instructions examined, and held properly given.

6. Instructions asked by defendants held properly refused.

Error to district court, Dixon county; POWERS, Judge.W. E. Gantt, for plaintiffs in error.

Barnes Bros., for defendants in error.

MAXWELL, J.

The defendants in error brought an action in the district court of Dixon county against the plaintiffs in error, who are saloon-keepers, to recover for loss of means of support, caused by intoxicating liquors furnised by the plaintiffs in error to the husband of Lucy A. Bates, and father of the defendants in error, who are minors. On the trial of the cause the jury returned a verdict for $600 in favor of the defendants in error, and, a motion for a new trial having been overruled, judgment was entered on the verdict.

A large number of errors are assigned. The first relates to the petition, which, it is claimed, is insufficient. Omitting the formal parts, it is as follows: “That from the 30th day of April, 1883, to the time of filing this petition, the said defendants Elijah H. Jones and William Gillen were engaged in business in the retail traffic in intoxicating liquors in the village of Ponca, county of Dixon, and state of Nebraska, as partners under the firm name and style of Jones & Gillen. That said defendants Peter Smith and B. W. Doyle from the 30th day of April, 1883, up to the 1st day of May, 1885, were engaged in business in the retail traffic in intoxicating liquors in the village of Ponca, county of Dixon, state of Nebraska, as partners under the firm name and style of Doyle & Smith. That said defendants Patrick E. Rush and J. N. Hamm, from the 30th day of April, 1883, up to the time of filing this petition, were engaged in business in the retail traffic in intoxicating liquor in the village of Ponca, county of Dixon, and state of Nebraska, as partners under the firm name and style of Rush & Hamm. That at and during all of the time aforesaid the said Lucy A. Bates, plaintiff, was for a long time prior thereto, and now is, the wife of one C. W. Bates, and is residing in a state of wedlock in Ponca, Dixon county, Neb. That during all of the time hereinbefore mentioned the said C. W. Bates, the husband of this plaintiff, was addicted to the immoderate use of intoxicating liquors as a beverage, and that said defendants during all of said time did sell, give, and furnish intoxicating liquors to said C. W. Bates to such an extent, and in such quantities, that the said C. W. Bates became and was during all of said time an habitual drunkard, and was continually in a state of intoxication, and was thereby rendered wholly unfit to perform labor, and was unable to carry on his business, and did not furnish this plaintiff with any means of support. That her said husband, C. W. Bates, during all of said time was in such a condition by reason of the use of said intoxicating liquors so sold, given, and furnished to him by the defendants that his earnings were small, and what money he did earn was all paid to defendants for said liquor, as aforesaid, and that all of said defendants sold, gave, and furnished said liquor to C. W. Bates, which so caused his intoxication as aforesaid, and that he, the said C. W. Bates, spent much of his time in the saloons so kept by defendants; and that the said defendants did continue to sell and did sell said intoxicating liquors to said C. W. Bates while he was intoxicated as aforesaid. That the said C. W. Bates, while so intoxicated, was profane, cruel, and abusive to this plaintiff and said minor children, that he was unable to support himself, and plaintiff was obliged to labor to support her said husband as well as herself and minor children. That this plaintiff and her said minor children were during all of said time dependent on her said husband, C. W. Bates, for their means of support. That said C. W. Bates is a mechanic, millwright, and a blacksmith by profession, and well-skilled in all kinds of mechanical work. That when sober, and not under the influence of intoxicating liquor, he was an industrious man, and well able to earn, and did earn, for the support of this plaintiff and her minor children, the sum of from three to five dollars per day, or the sum of $1,000 per year; and that during all of the said time, and for the three years last past, said C. W. Bates has been unable to labor and to obtain employment by reason of his so being continually in a state of intoxication, caused by the selling, furnishing, and giving of said intoxicating liquors to him by said defendants, as hereinbefore set forth, and has not contributed anything to the support of the said plaintiff and her said minor children; and that plaintiff has been left entirely destitute, and has during all of said time been obliged to and has gone out to menial service and labor in order to earn the means necessary to support and clothe herself and her minor children, and that said C. W. Bates has, himself, been so supported by this plaintiff. That plaintiff and her said minor children constitute one family, and reside in Ponca, Dixon county, Neb., and have been, and are, entirely without the means of support, as aforesaid; and that plain...