Kraus v. Schroeder

• Decision Date: 25 March 1921
• Docket Number: 21299
• Parties: RUDOLPH KRAUS, APPELLANT, v. MAX SCHROEDER ET AL., APPELLEES
• Court: Nebraska Supreme Court

182 N.W. 364

105 Neb. 809

RUDOLPH KRAUS, APPELLANT, v. MAX SCHROEDER ET AL., APPELLEES

No. 21299

Supreme Court of Nebraska

March 25, 1921

APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE, Reversed.

REVERSED.

Hall Baird & Williams and Bartos & Bartos, for appellant.

T. J Doyle, John C. Hartigan, Charles H. Sloan and P. R. Halligan, contra.

OPINION

MORRISSEY, C. J.

This is an action against two saloon-keepers and their surety to recover damages under section 3859, Rev. St. 1913, now repealed. The petition contained the usual allegations as to the business of the saloon-keepers and the execution of their bonds by the defendant surety company. It alleged that prior to the date of the injury complained of plaintiff was in the habit of visiting the saloons and procuring therein large quantities of intoxicating liquors and consuming same; that on February 21, 1917, plaintiff purchased from one of the defendant saloon-keepers "a large quantity of gin, whiskey, beer, and other intoxicating liquors," all of which plaintiff took with him to his home and consumed during that night; that by reason of drinking the intoxicating liquors sold by the defendant saloon-keepers plaintiff became insane, and while so insane shot and killed his wife and two children; that at the same time, while insane, the plaintiff inflicted wounds upon himself which caused him to become totally and permanently blind. Defendants filed a general denial. At the close of the evidence given by both plaintiff and defendants, on separate motion of each defendant, the court peremptorily instructed the jury to return a verdict for the defendants, and from this order plaintiff appeals.

Plaintiff testifies that from May 1, 1916, to February 20, 1917, he had frequently purchased liquor in the saloon of defendant Pimper, and that during the same period he had frequently purchased liquor in the saloon of defendant Schroeder, and had frequently drank intoxicating liquor in these saloons. February 10, 1917, he claims to have purchased beer and whiskey in defendant Pimper's saloon, and that on February 20, 1917, he drank a pint of whiskey he had purchased from defendant Pimper. In view of the instructions given by the court, it is only necessary to examine the bill of exceptions far enough to ascertain whether the testimony offered by plaintiff was sufficient to make a prima facie case on the questions put in issue by the pleadings. It is clear that the testimony is sufficient for that purpose. If we understand the attitude of the defendants, they concede that plaintiff had procured quantities of liquor at the saloons mentioned and had consumed the same, but rely upon the common-law rule that one may not take advantage of his own wrong, and they insist that the evidence brings the case clearly within that rule. If the rule of the common law applies, defendants' contention is probably sound. The statute in question was passed in 1881 and remained in force until May 1, 1917, when our prohibitory enactments became operative. During this long period it was frequently construed by the courts and was uniformly held to create a liability upon those who engaged in the liquor traffic under its provisions, creating a liability that did not exist at the common...