King v. Bell

• Court: Nebraska Supreme Court
• Writing for the Court: MAXWELL
• Citation: King v. Bell, 13 Neb. 409, 14 N.W. 141 (Neb. 1882)
• Decision Date: 07 December 1882
• Parties: KING v. BELL.

13 Neb. 409

14 N.W. 141

KING

v.BELL.

Supreme Court of Nebraska.

Filed December 7, 1882.

Error from Richardson county.Aug. Shoenheit, Frank Martin, and Clarence Gillespie, for plaintiff.

Reavis & Thomas, for defendant.

MAXWELL, J.

The defendant in error brought an action in the district court of Richardson county against John King and Fred. Weber, W. J. Ralston, J. Weixel, and Daniel Lydick, to recover damages for the loss of means of support caused by the death of her husband, which it is alleged was caused by intoxicating liquors sold to him by the plaintiffs in error. On the trial of the cause a verdict was rendered in favor of the defendant in error, and against W. J. Ralston, Daniel Lydick, and John King, upon which judgment was entered. The first objection is that at the time the action was commenced John King, the plaintiff in error, and one Fred. Weber were in partnership in the saloon bnsiness at Falls City, and the action was brought against them in the firm name of King & Weber, and that since the action was commenced Weber has died, therefore the action should abate. The objection is not sustained by the facts, as these parties are described in the title of the case as “John King and Fred. Weber, doing business as King & Weber.” The action is against them as individuals, although they are thereafter described in the petition as King & Weber. The Code makes the title of the case a part of the petition, and it is unnecessary to repeat the names of the parties, plaintiff or defendant. It is sufficient thereafter to describe them as “plaintiff” or “defendant,” or in any other manner sufficient to designate them. Where, therefore, parties are designated by name as defendants in the title, the addition of the relation they occupy to each other, such as a description of them as partners,” will not restrict the action to one against the firm alone, such as “King & Weber, a firm formed for the purpose of doing business in this state.” The plea in abatement, therefore, is entirely unwarranted. We do not decide, however, that even if the action had been brought against the partnership as a firm, that the plaintiff would not be liable; as the general rule is that if a partner, in pursuance of the partnership business, commit a wrongful act the members of the firm are liable.

2. King & Weber moved to strike out of the petition the following words: “And these plaintiffs aver that they have suffered other and further damages by reason of the aforesaid wrongful acts of the defendant on account of mental anguish, disgrace, loss of society, and the companionship of their said husband and father, whose death was caused in part by the joint acts of all of said defendants in selling and giving him intoxicating liquors in the manner as hereinafter more particularly stated;” which motion was sustained. No new petition was filed, however, nor were the words erased, but the question was not submitted to the jury. In this there was no error, unless the moving party required the words to be stricken out literally, which they could have insisted upon; it is sufficient that the words were treated as though stricken from the pleading. It is also objected that the motions of the other parties to strike out those words were overruled. The petition was a joint one against all the defendants, and a general motion filed by one to strike out any of the general allegations in the petition, where sustained, operated to the benefit of all. At the most, therefore, the failure to sustain the motions was error without prejudice.

3. The court gave the following instructions to the jury: “The court instructs you that when there is a conflict of testimony it is for the jury to reconcile the same, and determine what weight the testimony of any witness shall have. What credit shall be given to any witness, rest with the jury. You can credit or discredit witness according as you may believe or disbelieve the same.” We fully agree with the plaintiffs in error that the jury, although the judges of the credibility of the witnesses, have no right arbitrarily and without cause to discredit the testimony of a witness. In other words, there must be a reason for disbelieving the same. In a case where the evidence is conflicting, and it is impossible that all the witnesses have sworn to the truth, it is the duty of the jury to harmonize the testimony as far as possible, and where that cannot be done to determine which of the witnesses are more worthy of belief. In such...