Scott v. Chope

• Decision Date: 29 September 1891
• Citation: 49 N.W. 940,33 Neb. 41
• Parties: R. M. SCOTT ET AL. v. EMMA CHOPE
• Court: Nebraska Supreme Court

49 N.W. 940

33 Neb. 41

R. M. SCOTT ET AL. v. EMMA CHOPE

Supreme Court of Nebraska

September 29, 1891

ERROR to the district court for Valley county. Tried below before TIFFANY, J.

AFFIRMED.

J. N Paul, Aaron Wall, O. A. Abbott, and Thomas Darnall, for plaintiffs in error, cited, as to the motion for a new trial Tidd's Prac., marginal, p. 911, and cases; Sperry v Dickinson, 82 Ind. 138; Graham v. Henderson, 35 Id., 195; Easton v. Calendar, 11 Wend. [N. Y.], 96; Richards v. Walton, 12 Johns. [N. Y.], 434; Gray v. Richardson, 18 Pick. [Mass.], 417; Shirley v. Lunenburg, 11 Mass. 384; Smetters v. Rainey, 14 Ohio St. 288; Buckingham v. Bank, 21 Id., 131; Blanchard v. Gregory, 14 O., 415. As to the jurors: Curry v. State, 4 Neb. 549; Brunell v. R. Co., 5 Id., 453.

A. M. Robbins, and A. Norman, contra, cited, as to the motion for a new trial: Real v. Hollister, 20 Neb. 112; 17 Id., 661; Wiggenhorn v. Kountz, 23 Id., 691; Long v. Clapp, 15 Id., 424; Dutcher v. State, 16 Id., 33; Dunn v. Gibson, 9 Id., 513; Feeney v. Mazelin, 87 Ind. 229; Estey v. Burke, 19 Id., 87; Teters v. Hinders, Id., 93; Eichbredt v. Angerman, 80 Id., 208; Bank v. Colter, 61 Id., 153; Robertson v. Gartshwiler, 81 Id., 463; Boyd v. Anderson, 102 Id., 221; Sperry v. Dickinson, 82 Id., 138; Thompson, Trials, sec. 2721; Boldt v. Budwig, 19 Neb. 739, 746. As to the jurors: Bohanan v. State, 18 Neb. 57. As to the sixth instruction: Rogers v. Millard, 44 Iowa 466; Sackett's Instruction to Juries [2d Ed.], 22; Thornton's Instructions to Juries, sec. 201; Union Ins. Co. v. Buchanan, 100 Ind. 63; Bowers v. Thomas, 22 N.W. [Wis.], 710; Flanders v. Cottrell, 36 Wis. 564; Stetler v. R. Co., 49 Id., 609; Marschuetz v. Wright, 50 Id., 175, 178; Hoffman v. Gordon, 15 Ohio St. 211; Chamberlain v. R. Co., Id., 250; Hogg v. Mfg. Co., 5 O., 410; Pugh v. Calloway, 10 Ohio St. 493; Scott v. Sheakly, 3 Watts [Pa.], 50. As to the separation of the jury: Abbott's Trial Brief, 183, 184; Warner v. R. Co., 52 N.Y. 437; Tyrrel v. Lockhart, 3 Blackf. [Ind.], 136; Reitenbaugh v. Ludwick, 31 Pa. 131; Bolster v. Cummings, 6 Me., 85; Sutliff v. Gilbert, 8 O., 405; Mason v. Massa, 122 Mass. 477; Brown v. Dean, 123 Id., 254; Maclin v. Bloom, 54 Miss. 365.

OPINION

COBB, CH. J.

This cause comes to this court upon error from the district court of Valley county, in which court the defendant in error recovered a judgment against the plaintiffs in error. The cause of action set out in the petition in the court below is as follows:

"1. That on or about the day of April, 1887, the defendants, R. M. Scott and John Gorman, as principals, and John G. Cory and Edgar L. Hall, as sureties, made and executed their certain bond to the state of Nebraska in the penal sum of $ 5,000, conditioned that the said defendants, Scott and Gorman, would pay all damages, fines, forfeitures, and penalties that might be adjudged against them under the provisions of the law regulating the sale of malt, spirituous, and vinous liquors; that in accordance with said law regulating the sale of said liquors, the village authorities of the village of Arcadia duly approved said bond and issue a license to said defendants, Scott and Gorman, jointly, in due form of law, to sell malt, spirituous, and vinous liquors in the said village of Arcadia for the period of one year from the day of May, 1887, to the day of May, 1888; that under and by virtue of said license so issued the said Scott and Gorman were so engaged in the traffic and business of selling malt, spirituous, and vinous liquors at the said village of Arcadia on the 30th and 31st days of December, 1887.

"2. That on or about the day of April, 1887, the defendants, John G. Cory and William Shamburg, as principals, and John Wall and R. M. Scott, as sureties, made and executed and delivered to the state of Nebraska their certain bond in the penal sum of $ 5,000, conditioned that the defendants, John G. Cory and William Shamburg, would pay all damages, fines and forfeitures, and penalties that might be adjudged against them under the provisions of the law regulating the sale of malt, spirituous, and vinous liquors; that in accordance with said law regulating the sale of said liquors, the village authorities of the village of Arcadia duly approved said bond and issued a license to said John G. Cory and William Shamburg, jointly, and in due form of law, to sell malt, spirituous, and vinous liquors in said village of Arcadia for the period of one year from the day of May, 1887, to the day of May, 1888, and under and by virtue of the license so issued the said Cory and Shamburg were engaged in the traffic and business of selling malt, spirituous, and vinous liquors in the said village of Arcadia on the 30th and 31st days of December, 1887.

"3. That during the time aforesaid the plaintiff, Emma Chope, was, and for a long time prior thereto had been, the wife of William Chope, and is the mother of Clarence Chope, the minor son of the said William Chope and the plaintiff, who is of the age of six years, and that the plaintiff and said minor son were dependent on the said William Chope for their means of support.

"4. That the said William Chope was an able-bodied, industrious, and energetic man of twenty-four years of age and provided a good living for his family, the plaintiff and child aforesaid, and that the proceeds of his labors and earnings amounted to about the sum of $ 600 per year, which said sum was applied to the support of his family aforesaid.

"5. That on the 30th or 31st days of December, 1887, the said William Chope obtained liquors from the defendants Scott & Gorman, and from the defendants Cory & Shamburg, at and in their saloons in the village of Arcardia, which said liquors were sold to said William Chope by the defendants Cory & Shamburg and Scott & Gorman, and were there drank by the said William Chope, and that by reason of the liquors so furnished and sold to the said William Chope, by the said Scott & Gorman and the said Cory & Shamburg, and drank by him, the said William Chope, he became intoxicated and exceedingly drunk.

"6. That in said drunken and intoxicated state and condition the said William Chope started for his home about 7 o'clock in the evening; that the said William Chope resided at that time about eight miles from the said village of Arcadia, and that by reason of the intoxication aforesaid the said William Chope lost his head and became lost on the prairie, and wandered about until he became numb and stiff from the effect of the aforesaid intoxication and laid down, and was unable to go further and then and there was frozen to death; and that the death of the said William Chope was caused by the liquors so sold by the defendants to the said Chope and obtained from them, the said defendants, by him and drank by him, and the intoxication then and there produced.

"7. That the said William Chope became numb, stupefied, and bewildered, and lost his way and upset and overturned his sled, and became lost from his team and lost on the prairie, and became frozen to death, and plaintiff has thereby been deprived of the means of support to herself and child aforesaid which would otherwise have been furnished by said William Chope fully in consequence of the traffic of said Scott & Gorman and Cory & Shamburg in said intoxicating liquors as aforesaid, and the sale or giving away to said William Chope of the intoxicating liquor aforesaid and so drank by him as aforesaid, and by reason thereof the condition of said bonds have become broken and this plaintiff entitled to recover from the principals and sureties on said bonds her just and adequate damages so as aforesaid sustained thereby; and further, that said plaintiff has suffered damages by reason of the death of her husband as aforesaid in the loss of her means of support to herself and child aforesaid, in the sum and to the amount of $ 10,000, and that no part of the same has been paid and the same is now wholly due from the defendants to the plaintiff.

"8. That plaintiff is unable to set out or attach to the petition a copy of the liquor bonds so executed as aforesaid for the reason that, as she is informed and believes, the said bonds have been withdrawn from the possession of the officers of the village of Arcadia, and are now under the control of the defendants; that plaintiff has made diligent search for said bonds, and made inquiry and demand of the proper officers of said village of Arcadia for said bonds or a copy of the same, but cannot obtain the same, and was told by said officers that said bonds had been taken away from them and could not be furnished, and therefore plaintiff is unable to attach to her petition a copy of the same; with demand for judgment to the amount of $ 10,000 and costs."

The said defendant John Wall made answer to the above petition, and in his own behalf admitted that "during the spring of 1887 he signed a bond as one of the sureties of John C. Cory and William Shamburg, then doing business as copartners under the style and firm name of Cory & Shamburg, but whether the bond so signed by the defendant was the same bond sued on in this case the defendant has no knowledge except such as is derived from an inspection of the plaintiff's petition, and therefore denies that he executed the bond sued on in this cause, and demands proof of said fact and of the nature thereof, as alleged in the plaintiff's petition, and denies that he has, or ever has had, possession of the bonds sued on, and denies that he has any knowledge of its whereabouts, or ever had any such knowledge.

"2. That he has no knowledge as to whether the said William Chope drank any liquor at the time alleged, or whether such liquor in any way or manner contributed to the death of the said William...