Poffinbarger v. Smith

• Decision Date: 06 November 1889
• Citation: 43 N.W. 1150,27 Neb. 788
• Parties: POFFINBARGER ET AL. v. SMITH ET AL.
• Court: Nebraska Supreme Court

27 Neb. 788

43 N.W. 1150

POFFINBARGER ET AL.

v.SMITH ET AL.

Supreme Court of Nebraska.

Nov. 6, 1889.

Syllabus by the Court.

1. The title of the “Act to regulate the license and sale of malt, spiritous, and vinous liquors,” etc., approved February 28, 1881, is broad enough to cover a provision therein requiring the licensee and his bondsmen to pay all damages which individuals may sustain in consequence of intoxicating liquors furnished by him to another.

2. In an action by a widow and her minor children to recover from certain saloon-keepers and their bondsmen for loss of means of support caused by the death of the husband and father of the plaintiffs by suicide, which, it was alleged, was caused by continued intoxication from liquor furnished by the defendants for several days before his death, there was proof tending to show that for several days before his death the deceased had been sober, and that the act had been deliberately done. There was proof, also, tending to show that for a considerable period prior to his death he had been constantly under the influence of intoxicating drinks furnished by the defendants. Physicians were thereupon called, who testified as experts to hypothetical questions as to the probable effect of the continued use of intoxicating drinks in causing suicide. Held, that such testimony, under the facts proved, was admissible.

3. Objections to testimony held properly sustained.

4. Modification of instructions asked held correct.

Error from district court, Gage county; CHAPMAN, Judge.Burke & Prout, for plaintiffs in error.

A. Hardy and J. N. Rickards, for defendants in error.

MAXWELL, J.

This action was brought in the district court of Gage county, by the defendants in error against the plaintiffs in error, to recover damages for loss of means of support caused by the death from the use of intoxicating liquors of John E. Smith, the husband of Lydia E. Smith, and the father of Leroy Smith and Nellie Smith, minor children of said Smith and wife. On the trial of the cause, a verdict for the sum of $2,000 was rendered; and, a motion for a new trial having been overruled, judgment was entered on the verdict. There are 14 assignments of error, but 4 of which are referred to in the brief of the plaintiffs in error, and these will be considered in their order.

1. It is claimed that the court erred in receiving any evidence in support of the petition, because the object of the bill or act is not clearly expressed in the title, and that the subject-matter of sections 15, 16, and 17 are not contained or referred to in the title of the bill. In Pleuler v. State, 11 Neb. 547, 10 N. W. Rep. 481, the question of the authority to license was considered by this court, and the act sustained; and that decision has been adhered to ever since. The title of the act approved February 28, 1881, is as follows: “An act to regulate the license and sale of malt, spirituous, and vinous liquors, and to repeal chapter LIII. of the Code of Criminal Procedure of the General Statutes of 1873, entitled ‘License and sale of liquors,’ and to repeal an act entitled ‘An act to amend section 575 of chapter 58 of the Criminal Code,’ approved February 9, 1875, and to repeal an act entitled ‘An act to regulate the issuance of licenses for the sale of malt, vinous, and spiritous liquors in the state of Nebraska,’ approved February 25, 1875.” The title of the act in question is “An act to regulate the license and sale of malt, spiritous, and vinous liquors,” etc. A provision in the body of the act declaring the liability for damages sustained by any person from the use of intoxicating liquors furnished to another by the licensee is clearly within the title of the act. The law regards the traffic as an evil, and it attempts to regulate it, and reduce the evils to the minimum-- First, by requiring the petitioners to state that “the applicant for license is a man of respectable character and standing;” second, that he must pay for each license the amount required by the licensing board, which shall not be less than $500; third, public notice must be given of the application for license, at least two weeks before the granting of the same, and a time set for the hearing, and, if there be “any objection,protest, or remonstrance filed in the office where the application is made against the issuance of the license, a day shall be set for the hearing of the case,” and if it shall be made to appear that any former license has been revoked for any misdemeanor against the laws of the state, or that the applicant has been guilty of the violation of any of the provisions of the act for one year preceding, then the license...