McDougall v. Giacomini

• Court: Nebraska Supreme Court
• Writing for the Court: MAXWELL, J.
• Citation: McDougall v. Giacomini, 13 Neb. 431, 14 N.W. 150 (Neb. 1882)
• Decision Date: 07 December 1882
• Parties: MARGARET MCDOUGALL, PLAINTIFF IN ERROR, v. ANTONIO GIACOMINI AND PETER RANK, DEFENDANTS IN ERROR

14 N.W. 150

13 Neb. 431

MARGARET MCDOUGALL, PLAINTIFF IN ERROR, v. ANTONIO GIACOMINI AND PETER RANK, DEFENDANTS IN ERROR

Supreme Court of Nebraska

December 7, 1882

ERROR to the district court for Colfax county. Tried below before GASLIN, J., sitting in absence of POST, J.

REVERSED AND REMANDED.

Phelps & Thomas, for plaintiff in error, cited Kearney v Fitzgerald, 43 Iowa 584. Greenleaf Evidence, p. 38, sec 33. Cooley on Torts., 247.

W. H Munger, for defendants, cited Macleod v. Gerger, 6 N. W. R., 21. Kreiter v. Nichols, 28 Mich. 496. Parker v. The State, 4 Ohio St. 563.

OPINION

MAXWELL, J.

This action was brought in the district court of Colfax county by the plaintiff against the defendants to recover damages sustained by her for the loss of means of support by the intoxication of her husband, which it is alleged was caused by liquor furnished by the defendants. On the trial of the cause in the court below, a verdict was rendered for the defendants, upon which judgment was given. The petition contains twelve counts, the causes of action commencing on the 30th day of November, 1876, and terminating on the 10th day of October, 1880. The principal causes of action are for loss of time caused by intoxication of Alexander McDougall, the husband; the whole amount of damages claimed being $ 5,000. The answers admit that the plaintiff is the wife of Alexander McDougall, and admit that the defendants were licensed saloon keepers at Schuyler, and deny all the other facts stated in the petition.

The action is brought under section 579 of the crim. code of 1873 (Gen. Stat., page 853), which reads as follows: "On the trial of any suit under the provisions hereof, the cause or foundation of which shall be the acts done or injuries inflicted by a person under the influence of liquor, it shall only be necessary, to sustain the action, to prove that the defendant or defendants sold or gave liquor to the person so intoxicated, or under the influence of liquor, whose acts or injuries are complained of, on that day or about that time when said acts were committed or said injuries received; and in an action brought by a married woman, or other person whose support legally devolves upon a person disqualified by intemperance from earning the same, it shall only be necessary to prove that the defendants have given or sold intoxicating drinks to such person in quantities sufficient to produce intoxication, or when under the influence of liquor."

A large number of errors are assigned in the petition in error, but the only error relied upon is that the verdict is against the weight of evidence. Mrs. McDougall testifies that on or about the thirtieth of November, 1876, she saw her husband and Mr Kenier standing at the bar of Mr. Giacomini's saloon drinking, her husband at the time being "pretty badly under the influence of liquor; they had been drinking all the afternoon." She also states that the same afternoon she saw her husband in the saloon of Peter Rank. She also testifies to the number of times her husband had been intoxicated while in Schuyler between November 30th, 1876, and the commencement of the action, and states a number of instances where he was found intoxicated, generally in connection with the saloon of Mr. Giacomini. A. B. Wilson testified that about October 12th, 1880, he saw Mr. McDougall go into Giacomini's saloon while drunk and "get a drink, him and Tom McGary." One Perrine testified that he drank with McDougall on two occasions, at least once in Giacomini's saloon, in April, the year not being given, when they were all under the influence of liquor. One Stevens testifies that in October, 1880, he saw McDougall go into Giacomini's saloon in the morning sober, and about two o'clock saw him standing close to the door where he went in "a little drunk." The plaintiff's son testified that in October, 1880, he saw his father in Giacomini's saloon, and about the same time he saw him in the saloon of Peter Rank drinking while under the influence of liquor. The defendants offered no testimony and none of the above is denied. The testimony shows that McDougall is a carpenter and a good workman, and when not under the influence of liquor attends to his business. And also shows that the wife has sustained very great injury by reason of the loss of means of support. Does the...