Nowotny v. Blair

• Decision Date: 30 June 1891
• Citation: 32 Neb. 175,49 N.W. 357
• Parties: NOWOTNY ET AL. v. BLAIR.
• Court: Nebraska Supreme Court

32 Neb. 175

49 N.W. 357

NOWOTNY ET AL.

v.BLAIR.

Supreme Court of Nebraska.

June 30, 1891.

Syllabus by the Court.

1. The précis of the statute, (section 18, c. 50,) in an action against a licensed liquor seller and his sureties for injury by an intoxicated teamster driving violently and negligently against the vehicle of plaintiff, held to be a sufficient statement of the cause of action. See Maxw. Pl. & Pr. (1889) p. 308; Kerkow v. Bauer, 15 Neb. 154, 18 N. W. Rep. 27.

2. That a verdict is excessive, and was rendered under the influences of passion and prejudice, assigned as an error in a civil action for review, held, that there must be some testimony or fact of record to support the conclusion.

3. If a challenge to an incompetent juror be overruled, and he is afterwards peremptorily challenged and excluded, and the record fails to show that the party's peremptory challenge was exhausted, held, that the error of overruling the cause for challenge was without prejudice. Burnett v. Railroad Co., 16 Neb. 332, 20 N. W. Rep. 280.

Error to district court, Butler county; MARSHALL, Judge.

Action by one Blair against Martin Nowotny, J. R. Jones, George Sheldon, and M. Demuth on an undertaking to pay damages resulting from the exercise of a license to sell intoxicating liquors. Judgment for plaintiff. Defendants bring error. Affirmed.A. J. Evans, M. Miller, and Harwood, Ames & Kelly, for plaintiffs in error.

S. H. Steele, for defendant in error.

COBB, C. J.

The plaintiff below, and defendant in error, on December 15, 1888, brought her action against Martin Nowotny, J. R. Jones, George Sheldon, and M. Demuth, in the district court, alleging that on May 1, 1887, the defendant Nowotny procured a license from the city council of David City to sell malt, spirituous, and vinous liquors in that city; that, as a condition of allowance of license, Nowotny, as required by law, executed and delivered to the city his undertaking to pay all damages, fines, and penalties that might be adjudged against him by reason of the sale of liquors. The other defendants were his sureties on the undertaking. Second. The plaintiff alleged that on October 29, 1887, Nowotny, at his saloon in David City, sold and delivered to Frank Sedlock an intoxicating liquor commonly called “beer,” which Sedlock then and there drank, by reason of which he became intoxicated, and, while so intoxicated, carelessly and violently drove his wagon against the wagon of William Blair, the plaintiff's husband, wherein plaintiff was riding, and caused plaintiff to be thrown from her seat upon her back, greatly damaging and injuring her, so that she has for more than a year been confined to her house, and most of the time obliged to remain in bed, and suffered intense pain both in mind and body. That at the time of the injury plaintiff was thrown from her seat in the wagon, and fell across the back of the seat, upon the small of her back, by reason of which her back was seriously injured, and she was so badly hurt as to be thrown into spasms and sinking spells, and her mind and nervous system were greatly injured and affected by her fall, and she has never recovered from her injury, but still continues to suffer, and is unable to attend to her household duties as a wife and mother; and she alleges that she is informed by physicians and believes that her injuries are such that she will never recover, and, even if she continues to live, she will during the remainder of her life be compelled to suffer as an invalid, most of the time confined to her bed, to her damage $5,000. The defendants, on February 15, 1889, answered, admitting that Nowotny procured a license to sell malt, spirituous, and vinous liquors as alleged. (2) They deny each and every other allegation alleged. There was a trial to a jury, which on September 24, 1889, returned a verdict for the plaintiff of $4,500. On October 5, 1889, the defendant's motion for a new trial was considered and overruled, and judgment entered upon the verdict for $4,500, with lawful interest from that date, and costs of suit, against all the defendants, to which exceptions were duly taken, and the following errors assigned: (1) The verdict and judgment are excessive; (2) the same are not sustained by sufficient evidence; (3) the verdict appears to have been given under the influence of passion and prejudice; (4) the verdict is contrary to law; (5) is contrary to instructions of the court, 2, 3, and 4, of its own motion; (6) is contrary to the instructions; (7) errors of law occurring at the trial and excepted to; (8) in giving instructions 1 and 2, at request of plaintiff; (9) in refusing instructions 3 and 4, at request of defendant; (10) in overruling challenge for cause of R. C. London, juror; (11) in overruling challenge for cause of D. P. Grice, juror; (12) in overruling defendants' motion for new trial on affidavits of newly-discovered evidence.

The first objection offered and argued in the brief of the plaintiffs in error is that the petition fails to state as cause of action, and that it is not alleged that the intoxication produced the injury complained of, but that the intoxicated man, Sedlock, carelessly and violently ran his wagon into that occupied by plaintiff, and thereby produced the injury. Three elements of the action only are stated,--the intoxication, and negligence of Sedlock, and the injury to the plaintiff. Counsel ask, does the injury necessarily follow from the allegation of intoxication? And is it enough to allege that the man Sedlock was intoxicated, and leave it to the court and jury to infer that he was therefore careless, or that therefore the accident happened, and the injury followed? We answer these queries of counsel emphatically in the affirmative, under the proof submitted to the jury at the trial. This action is brought under chapter 50 of our statutes, as follows: “Sec. 18. Trial evidence. 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...