Roose v. Perkins
| Decision Date | 15 October 1879 |
| Citation | 2 N.W. 715,9 Neb. 304 |
| Parties | FRED ROOSE AND OTHERS, PLAINTIFFS IN ERROR, v. ELIZA PERKINS AND OTHERS, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Seward county. Tried below before POST, J. The facts appear in the opinion.
REVERSED AND REMANDED.
Lowley & Leese and Norval Brothers, for plaintiffs in error.
1. There is a defect of parties plaintiff. The action should have been brought by the legal representatives of the deceased. The widow cannot maintain the action. Statutes 272, secs. 1, 2; p. 853, sec. 577. Davis v. Justice, 31 Ohio State, 364. Weidner v. Rankin, 26 Ohio State, 522. If it be claimed that the widow and children can maintain an action, yet they cannot maintain a joint action for it is a well settled rule of law that a joint action cannot be maintained against a common defendant by two parties, having distinct and separate causes of action, while neither has any interest in the causes of action of the other. Bort v. Yaw, 46 Iowa 323.
2. Instructions numbered one, two, and three were erroneous for the following reasons:
First. The jury were told that plaintiffs could recover for injuries accruing to each individual, and for which each should maintain a separate action, if one is maintainable.
Second. In enunciating as a principle of law that each defendant is liable for the acts of all, without showing a conspiracy.
Third. In directing the jury that all the defendants who sold the liquors were liable, not only for their own acts, but the acts of others who were not parties to the suit.
Fourth. The question of joint liability is one of fact for the jury and not the court to determine. 2 Hilliard on Torts, chap 33, sec. 9, c.
The fourth instruction is clearly erroneous for these reasons.
First. In directing the jury that in determining the amount of damages they could take into consideration the estate of the deceased. Could the fact, that the deceased was as rich as a Jew or as poor as a church mouse, cut any figure in the case?
Second. In directing the jury to consider the amount of the deceased's earnings. It should have been, the amount he would have earned and applied to the support of plaintiff.
Third. In telling the jury that the "Tables of Ex pectancy" should be considered by the jury. Damages can not be allowed for injury to means of support in consequence of the intoxication which caused the death of the intoxicated person. The statute does not give such an action, nor could one have been maintained at common law. Davis v. Justice, 31 Ohio State, 359. Mobile Life Ins. Co. v. Brame, 95 U.S. 754.
Hart & Edwards, and McKillip & Page, for defendants in error.
1. There was no improper joinder of defendants; the motion to strike was therefore properly overruled by the court, and for the further reason that if there was a defect, the remedy was demurrer. Woolheather v. Risley, 38 Iowa 486. Hackett v. Smelsey, 77 Ill. 107, 121. Jewett v. Warshura, 43 Iowa 574. Pomeroy on Remedies, 391, 307. Fountain v. Draper, 49 Ind. 441. Stone v. Dickenson, 5 Allen, 29. La France v. Krayer, 42 Iowa 143. Kearney v. Fitzgerald, 43 Iowa 580.
2. There is no defect of parties plaintiff. The action is properly brought in the name of the wife or widow for herself and her minor children, and not as personal representative. Demurrer was properly overruled. Gen. Stats. Neb. 853 sec. 576-7 and 581. Gen. Stat. Neb. 272, Secs. 1, 2. Emory v. Addis, 71 Ill. 273. Hackett v. Smelsey, 77 Ill. 109. Davis v. Justice, 31 Ohio 364. The dissenting opinion and authorities there cited. Raferty v. Buckman, 46 Iowa 195. Jackson v. Brooking, 5 Hun., N.Y. 533.
3. The fourth instruction is correct. Where, as in this case, the action is for damages for means of support, the estate may be considered. Suppose the deceased was rich, and in his lifetime drew his means of support for his wife and family from the profits or proceeds of his estate, and he dies possessed of said rich estate, and the profits or proceeds continue to flow in for the support of his family; and suppose again the deceased was poor and the entire means of support were the proceeds of his manual labor, when he dies their entire means of support is gone, and gone forever--is there no difference in the damage to the means of support left to the families of the rich and the poor? What figure does the Jew and church mouse argument cut here? Wight v. Devere, 33 Wis. 570. Schneider v. Hosier, 21 Ohio St. 90. Mulford v. Clewell, 21 Ohio St. 191. Woolheather v. Risley, 38 Iowa 486. Hackett v. Smelsey, 77 Ill. 109. Raferty v. Buckman, 46 Iowa 200. Field on Damages, 503, Sec. 632.
Eliza Perkins, one of the defendants herein, brought an action in the district court of Seward county, in her own behalf, and as next friend for her eight minor children, against Charles Hackworth, and the firms of Rummel & Goodbred, Kuhlenkamp & Weber, and Roose Bros. & Wolf, keepers of the various saloons in the town of Seward, to recover the sum of $ 10,000 for injuries sustained by herself and children by the death of her husband, caused by liquors sold and furnished to him by the saloon keepers above named, whereby the means of support of herself and children were cut off and destroyed. On the trial of the cause a verdict was returned in favor of the plaintiffs for the sum of $ 3000, upon which judgment was rendered. Roose Bros. & Wolf and Charles Hackworth bring the case into this court by petition in error. The errors assigned will be considered in their order:
First. It is claimed that the motion of the defendants below should have been sustained, requiring the plaintiffs to state in their petition whether defendants were selling under license or not. The motion was properly overruled. This is not an action on the bond, and the statute expressly provides that the person licensed shall pay all damages, etc. The license is no protection from liability. Gen. Stat., 853.
Second. It is urged that there was an improper joinder of defendants and that the motion to strike out should have been sustained.
Section 576 of the criminal code, Gen. Stat., 853, provides that "the person so licensed shall pay all damages that the community or individuals may sustain in consequence of such traffic," etc. Section 578 provides that "when any person shall become a county or city charge by reason of intemperance, a suit may be instituted by the proper authorities on the bond of any person licensed under this chapter, who may have been in the habit of selling or giving intoxicating liquors to the person so becoming a public charge; provided, that the person against whom a judgment may be rendered under the provisions hereof may recover by a similar action a proportionate part of said judgment from any or all persons engaged in said traffic, who have sold or given liquor to such person becoming a public charge, or to any person committing an offense."
Section 579 provides that: "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 for damages 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 defendant has given or sold intoxicating drinks to such persons in quantities sufficient to produce intoxication, or when under the influence of liquor."
It will be perceived that every person who has given or sold intoxicating drinks to another in quantities sufficient to produce intoxication, or when under the influence of liquor, is liable. The motion was therefore properly overruled. But suppose parties defendant are improperly joined, who can take advantage of the misjoinder? The defendant, Hackworth, moves to strike out of the petition the names of all the other defendants because they are improperly joined with him in the action. An objection of this kind can be made only by those defendants who are wrongly sued, by separate demurrers to the petition, not on the ground of "defect of parties"--that is available when it appears on the face of the petition (that there is a nonjoinder of parties plaintiff or defendant)--but upon the ground that the facts stated in the petition do not constitute a cause of action against the party demurring. This is not a case where there is a misjoinder of causes of action. It is difficult to perceive how a party properly sued can be injured by the joinder of other parties. When on the trial of a case it appears that parties not liable have been improperly joined, the cause will be dismissed as to them at the plaintiff's costs.
Third. Objection is made that time was not given Kahlenkamp Hackworth, and Rummell to answer. It appears from the bill of exceptions that the court, upon overruling the demurrer of the defendants to the petition, required the defendants to answer instanter, whereupon the attorneys for the defendants refused to plead further, and announced their intention to appear no further in the case. Such being the case the court did not err in permitting the cause to proceed to trial. Where it is apparent that a defendant has a defense to an action, the court, upon overruling a demurrer, must allow a reasonable time in which to prepare an answer, unless it appears that the demurrer was filed merely for delay, and not with any...
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