Roberts v. Taylor

• Decision Date: 17 February 1886
• Citation: 27 N.W. 87,19 Neb. 184
• Parties: THOMAS M. ROBERTS, PLAINTIFF IN ERROR, v. SARAH E. TAYLOR ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

27 N.W. 87

19 Neb. 184

THOMAS M. ROBERTS, PLAINTIFF IN ERROR, v. SARAH E. TAYLOR ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

February 17, 1886

ERROR to the district court for Burt county. Tried below before NEVILLE, J.

R. B Daley, for plaintiff in error.

Hopewell & Dickinson, for defendants in error.

OPINION

MAXWELL CH. J.

This action was brought by the defendants in error against the plaintiff in the district court of Burt county, to recover for loss of means of support of the husband and father caused by intoxication from liquor furnished in part, at least, by the plaintiff in error. On the trial of the cause the jury returned a verdict in favor of the defendants in error for the sum of $ 995.66 2/3, upon which judgment was rendered. A large number of errors are assigned, which will be considered in their order.

First. That the court erred in refusing to strike certain words out of the petition. The following is a copy of the petition, omitting formal allegations:

"1. The plaintiff, Sarah E. Taylor, for herself, and, as next friend, for her minor children, to-wit: Lillie E., age 15 years; Rodes J., age 11; Nettie E., age 8; Nettie G., age 5; Charles A., age 3; complains of the defendant, Thos. M. Roberts, for that on the 15th day of March, A.D. 1883, and during all the intervening time since, the said defendant was and has been a saloon keeper and engaged in the retail traffic in intoxicating liquors in the town of Tekamah, Burt county, Nebraska.

"2. During the time aforesaid the plaintiff, Sarah E. Taylor, was, and for a long time prior thereto had been, the wife of the said Wm. H. Taylor, and the other plaintiffs are their minor children.

"3. That the plaintiffs were all dependent on said Wm. H. Taylor for their means of support; that prior to said 15th day of March, 1883, that said Wm. H. Taylor was an able-bodied, industrious, energetic man, and provided a good living for his family, the plaintiffs aforesaid; that the proceeds of his labor and earnings amounted to about the sum of $ 1,000 per year, which he applied to their support; that at the above named dates the said plaintiffs and Wm. H. Taylor were in comfortable circumstances and had $ 500.

"4. That on or about the 15th day of March, A.D. 1883, and at divers times thereafter, continuing down to the commencement of this action, the said defendant sold and furnished to the said Wm. H. Taylor intoxicating liquors in quantities sufficient to cause intoxication, which said Wm. H. Taylor drank and thereby became intoxicated, and while in this drunken condition the said defendant continued to furnish him such intoxicating liquors.

"5. The said Wm. H. Taylor, by reason of the use of said intoxicating liquors so as aforesaid furnished him by said defendant, has become an habitual drunkard, and these plaintiffs have in a great measure been thereby deprived of his labor and support during the whole of the time aforesaid. The $ 500 above referred to has been squandered and the plaintiffs are left wholly without means of support.

"6. The plaintiff, Sarah E. Taylor, and said minor children constitute one family and have sustained damages in the premises in the sum of $ 5,000."

The defendant filed a motion to strike from said petition the following words, for the reason that the same are irrelevant to the issue and redundant, to-wit:

The said Wm. H. Taylor "has become an habitual drunkard and."

Which motion was overruled and the defendant excepted.

Thereafter the defendant filed a motion to require the plaintiffs to specify the amount of the husband's labor and support of which they had been deprived as averred by the words "in a great measure," and asking that plaintiffs specify the items and dates of such lost labor and support.

Which motion was overruled, to which the defendant then and there excepted.

The defendant thereupon filed an answer to said petition, as follows:

"1. The defendant, answering the plaintiffs' petition, admits that he was a saloon keeper as charged, and that Sarah E. Taylor and the other plaintiffs were the wife and children of Wm. E. Taylor and were dependent on him for their means of support, and that they constitute one family.

"2. Said Wm. H. Taylor was on and prior to the 13th day of March, 1883, a man who indulged in the use of intoxicating liquors, and by reason of this habit for several years prior to March 15, '83, had neglected and failed to appropriate all his earnings and time to the support of his family.

"3. Defendant says that from February 1st to September 10 he did not sell nor give, nor permit to be sold or given by his agents or employes, to Wm. H. Taylor any intoxicating liquor of any character.

"4. Defendant avers that said plaintiffs ought not to have and maintain their action against him for loss of their means of support, by reason of the selling or furnishing of intoxicating liquor by said defendant to said Wm. H. Taylor, during that portion of the time mentioned in plaintiffs' petition from and after September 15th, 1884, to the commencement of this action, for the reason that the defendant says that on or about the last mentioned date the plaintiff, Sarah E. Taylor, personally directed and requested the defendant to let the said Wm. H. Taylor have intoxicating liquor by the drink whenever he wanted it, which request has never been withdrawn, and all liquors thereafter sold and furnished by the defendant to said Wm. H. Taylor were so sold and furnished in pursuance of such request and direction of said plaintiff. This was done with great care on the part of said defendant to restrain said Wm. Taylor from drinking such an amount as would cause him to become intoxicated.

"5. Defendant denies each and every allegation in said plaintiffs' petition contained, and not hereinbefore admitted."

The reply is a general denial.

The first objection is, that the court overruled the motion to strike out of the petition the words that Taylor "has become an...