Murphy v. Gould
Decision Date | 05 June 1894 |
Docket Number | 5122 |
Citation | 59 N.W. 383,40 Neb. 728 |
Parties | P. B. MURPHY ET AL. v. MARY J. GOULD |
Court | Nebraska Supreme Court |
ERROR from the district court of Sheridan county. Tried below before KINKAID, J.
AFFIRMED.
W. H Westover, for plaintiffs in error.
Thomas L. Redlon, contra.
This action was brought in the court below by Mary J. Gould, for herself and her minor children, against the principals and sureties upon two liquor dealers' bonds to recover damages for loss of means of support occasioned by the sale of intoxicating liquors by P. B. Murphy & Son and Henry Harrison, the principals in said bonds, to Willard Gould, the husband of said plaintiff. The trial resulted in a verdict and judgment against the defendants for the sum of $ 500, to reverse which the saloon-keepers and their bondsmen prosecute error to this court.
The first three assignments of error relate to the giving and refusing of instructions, which are stated alike in the petition in error and motion for a new trial, as follows:
Assignments of error similar to the above were held bad, after a careful review of the authorities, by RYAN, C., in his opinion in Hiatt v. Kinkaid, 40 Neb. 178, 58 N.W. 700. The third and fourth paragraphs of the syllabus in that case are in the following language:
In the case under consideration the trial judge gave on his own motion but five instructions, the first of which is in this language:
The foregoing is a brief and concise statement of the nature of the plaintiff's case as presented by the petition. The instruction was above criticism, and, taken in connection with the second instruction of the same series, fairly presented both sides of the controversy to the jury.
The second assignment of error covers all the instructions given at the request of the plaintiff below, there being six in number. Instruction numbered 1 of this group reads as follows:
The doctrine enunciated in the foregoing first request to charge has been sanctioned by this court in every decision upon the subject from Roose v. Perkins, 9 Neb. 304, 2 N.W. 715, to the present time, and is the settled law of this state. (See Elshire v. Schuyler, 15 Neb. 561, 20 N.W. 29; Kerkow v. Bauer, 15 Neb. 150, 18 N.W. 27; McClay v. Worrell, 18 Neb. 44, 24 N.W. 429; Warrick v. Rounds, 17 Neb. 411, 22 N.W. 785; Wardell v. McConnell, 23 Neb. 152, 36 N.W. 278; Jones v. Bates, 26 Neb. 693, 42
N.W 751.) By plaintiff's sixth request the jury were told, in effect, that the sale of intoxicating liquors may be shown by the proof of circumstances. There can be no doubt...
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