McClay v. Worrell
| Decision Date | 04 September 1885 |
| Parties | JAMES G. MCCLAY, JR., WILLIAM MANGAN, AND JOHN FORD, PLAINTIFFS IN ERROR, v. NANCY WORRALL, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Nemaha county. Tried below before BROADY, J.
AFFIRMED.
Stowell & Kelligar, J. C. Watson, E. W. Thomas, and G. B. Beveridge for plaintiffs in error.
Osborn & Taylor, for defendant in error.
This action was brought by the defendant in error for the loss of her support, in the homicide of her only son, Davis S Worrall, who was killed by one Mark Hall, on the 4th day of July, 1884, at North Auburn, Nemaha county. The action was brought against the plaintiffs in error, James G. McClay and William Mangan and John Ford, co-partners in business as Mangan & Ford, on the ground that they, being at the above date saloon keepers at said place engaged in selling intoxicating liquors, both the said McClay and Mangan & Ford at their respective saloons sold and furnished to the said Mark Hall and the said Davis S. Worrall intoxicating liquors, which they then and there drank, that they thereby became intoxicated and by reason of such intoxication they became engaged in a wrangle, and the said Mark Hall assaulted the said Davis S. Worrall with a billiard cue and killed him, thereby causing the loss of support to his aged mother, the plaintiff.
It was proved on the trial that the plaintiff is fifty-nine years of age, that she is a widow, and has been for twenty-one years; that she is and has been for the last ten years of delicate and failing health, and unable to perform manual labor except to a very limited extent; that she has no property or means, except a very few cheap household goods; that she has for ten years, up to the time of the death of her son, Davis S. Worrall, lived with and been supported by him by means of his labor; that she has no son now living; that she has four daughters all of whom are married, and none of whom have any property or means for the support of plaintiff. It also appears that the said Davis S. Worrall was, at the time he was killed as aforesaid, of the age of twenty-three years, and unmarried; that he was engaged in cultivating rented land; that he owned a team and a few agricultural implements, but was in debt for a portion of them; that he was a strong, healthy man, industrious and of good habits.
It was also proved, as well as admitted in the pleadings, that at the time of the death of Davis S. Worrall the defendants, McClay by himself and Mangan & Ford together as partners, were engaged in selling malt, vinous, and intoxicating liquors at Auburn. It was also proved that on the day in question, and before the altercation in which Davis S. Worrall lost his life, both McClay and Mangan & Ford at their respective saloons in Auburn, by themselves and their respective barkeepers, sold and furnished both to Davis S. Worrall and Mark Hall, the man who killed him, intoxicating liquors at different times, which they severally drank, and by means of which they both became intoxicated; that by reason of such intoxication they quarreled and Hall struck Worrall with a billiard cue, from the effect of which he soon afterwards, and on the same day, died.
The jury found a verdict for the plaintiff, and assessed her damages at one thousand dollars. The cause was brought to this court on error.
The first error assigned was raised by demurrer to the petition and by objection to the introduction of any testimony under it, on the ground of the insufficiency of the petition to state a cause of action. The point is stated by counsel in their brief in the following language:
The following is the provision of statute above referred to--Sec. 1, chap. 67, Comp. Stats.: "Every poor person who shall be unable to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy, or other unavoidable cause, shall be supported by the father, grandfather, mother, grandmother, children, grandchildren, brothers, or sisters of such poor person, if they or either of them be of sufficient ability; and every person who shall refuse to support his or her father, grandfather, mother, grandmother, child, or grandchild, sister or brother, when directed by the county commissioners of the county where such poor person shall be found, whether such relative shall reside in the same county or not, shall forfeit and pay to the county commissioners, for the use of the poor of their county, such sum as may be by the county commissioners adjudged adequate and proper to be paid, not exceeding ten dollars per week, for each and every week for which they or either of them shall fail or refuse, to be recovered in the name of the county commissioners, for the use of the poor aforesaid, before a justice of the peace or any other court having jurisdiction; Provided, That whenever any persons become paupers from intemperance or any other bad conduct, they shall not be entitled to support from any relative except parent or child; And provided further, That such poor person entitled to support from any such relative may bring an action against such relative for support, in his or her own name and behalf."
This statute declares the liability and legal obligation of the relatives designated to support the class of poor persons therein named, and provides the manner by which the poor fund of the county may be reimbursed in cases where such relatives, being of sufficient ability, shall neglect or refuse such support after being required to furnish it. But it also provides that such poor person may avail himself of the right to support therein declared, without resort to the overseers of the poor. It was clearly the object of the second proviso to the section above quoted to open an avenue to the compulsive support of the class of persons therein contemplated, not through the poor-house, but through the courts of justice. In such cases it is the court and not the county commissioners as overseers of the poor which may decide upon the status of such poor person and the ability of the relative to furnish such support.
The case at bar was brought under the provisions of chapter 50 and the plaintiff need only invoke the provisions of chapter 67 for the purpose of establishing one link in the chain of law constituting her right to recover, to-wit: The legal obligation resting upon a son of whatever age, being of sufficient ability, to support his aged, infirm, and destitute mother. Sec. 13 of chapter 50, Comp. Stat., provides that, "The person so licensed shall pay all damages that the community or individuals may sustain in consequence of such traffic," etc. The context sufficiently shows that the traffic here mentioned is the traffic in malt, spirituous, and vinous liquors and any intoxicating drinks, and by the provisions of section 11, the provisions of section 13 are made to apply to all persons engaged in such traffic, whether licensed or...
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