Smith v. Roehrig

• Citation: 133 N.W. 230,90 Neb. 262
• Decision Date: 14 November 1911
• Docket Number: 16,896
• Parties: FORD SMITH, APPELLEE, v. EDWARD A. ROEHRIG ET AL., APPELLANTS
• Court: Supreme Court of Nebraska

133 N.W. 230

90 Neb. 262

FORD SMITH, APPELLEE, v. EDWARD A. ROEHRIG ET AL., APPELLANTS

No. 16,896

Supreme Court of Nebraska

November 14, 1911

APPEAL from the district court for Douglas county: HOWARD KENNEDY JUDGE. Affirmed.

AFFIRMED.

C. W Britt and A. G. Ellick, for appellants.

John M Macfarland and Albert W. Jefferis, contra.

OPINION

SEDGWICK, J.

The defendant Roehrig was a licensed saloon-keeper in the city of Omaha, and the defendant the Title Guaranty & Surety Company of Scranton, Pennsylvania, was the surety on his bond as such saloon-keeper. The plaintiff began this action to recover damages for personal injuries inflicted upon him in or about the saloon of defendant, and caused, as he alleges, by the intoxication of George Weatherford and Bud Weatherford, who assaulted and injured him, alleging that the defendant sold the liquor that caused the intoxication of the said George Weatherford and Bud Weatherford. The plaintiff recovered a judgment for $ 2,000 damages, and the defendants have appealed.

1. The principal part of the brief of the defendants is devoted to an attack upon the constitutionality of the statute known as the "Slocumb law." Comp. St. 1909, ch. 50. Many reasons are given for considering this law unconstitutional. They are quite fully presented, and urged with earnestness and ability. It is maintained that the whole act is unconstitutional, but the principal attack is upon section 15, which is the basis of this action. The so-called Slocumb law was enacted in 1881, and section 15 substantially re-enacts section 576 of the criminal code as it then existed (Gen. St. 1873), which was a part of the criminal code of 1866 (sec. 340), so that this particular section has been upon the statute books for 45 years. During this time this court has considered a very large number of cases, both civil and criminal, under the various provisions of this statute, and the Slocumb law very soon after its enactment was challenged as unconstitutional. In Pleuler v. State, 11 Neb. 547, 10 N.W. 481, the question of the constitutionality of the act in general was presented by very able counsel and thoroughly considered in the opinion by Mr. Justice LAKE, and the act was held to be constitutional. This was a criminal prosecution, and did not specifically involve the provision of section 15 of the act. Again, in Hunzinger v. State, 39 Neb. 653, 58 N.W. 194, the proviso of section 1 of the act was considered, and held to be constitutional, and the court declared itself to be entirely satisfied "with the reasoning and the conclusion" in Pleuler v. State, supra. In cases almost innumerable this court has considered various parts of this act, and has assumed that the act as a whole is within the power of the legislature, and valid. For these reasons, while we have examined the brief in this case upon these constitutional questions with interest, we do not feel called upon to enter into an extensive discussion of the questions so presented.

2. The petition alleges that "George Weatherford and Bud Weatherford assaulted and beat this plaintiff with their fists, feet, and with hard instruments, and said George Weatherford, whilst intoxicated from the liquors sold him by the said Edward A. Roehrig, and from no other cause, and without any fault on the part of this plaintiff, struck the plaintiff in the left eye, and injured same, so that this plaintiff has lost the use of said eye, and suffered great pain in said eye until about the 30th day of September, 1908, when said left eye of this plaintiff, which before this assault was in perfect condition, and owing to the injury received, was removed from his head by a surgeon; that it became necessary to remove this eye by reason of the injury; and that owing to this injury the other eye of this plaintiff is now defective." The evidence tended to show that the plaintiff and both of the Weatherfords were drinking at the bar of the defendant, and became involved in a quarrel, and that the plaintiff was assaulted and severely beaten by the Weatherfords, and that the plaintiff's eye was injured substantially as he alleged in the petition. When the evidence was complete, the plaintiff asked leave to strike from the petition the following words: "Said George Weatherford, whilst intoxicated from the liquors sold him by the said Edward A. Roehrig, and from no other cause, and without any fault on the part of this plaintiff." The court refused to allow these words to be stricken from the petition, on the ground "that said amendment presents a theory of this case other and different from that presented in the pleadings, and upon which the case was tried, and creates a new and different issue in this case than was presented by the original petition." Under the directions of the court, the jury made special findings of fact, and found specially that George Weatherford was under the influence of liquor at the time the plaintiff was injured, and that one of the Weatherfords struck the blow that caused the injury to the plaintiff's eye which resulted in its removal, but that they were unable to determine which one of the Weatherfords struck the blow. The general verdict of the jury was in favor of the plaintiff, assessing his damage at the sum of $ 2,000. The court instructed the jury that, unless they found that George Weatherford struck the blow that caused the injury to plaintiff's eye, they could not allow the plaintiff any damages caused by that particular injury. It is now insisted that the damages allowed by the jury in their general verdict are excessive, because under the instruction of the court the loss of the plaintiff's eye is not to be considered in estimating the damages, and the other injuries suffered by the plaintiff were not serious, and not sufficient to justify the damages allowed. It seems clear that the court should have allowed the plaintiff's request to strike out the allegation specifying which one of the Weatherfords struck the blow that caused the injury to the plaintiff's eye. That allegation, however, was immaterial, and might properly be treated as surplusage. The two Weatherfords joined in the assault upon the plaintiff, and each of them was responsible for the actions of the other in committing a joint assault. The difficulty in the case arises from the instruction of the court to disregard the injury to the eye, unless the jury could determine that George Weatherford caused that injury. The instruction was incomplete and inaccurate, if not erroneous, and should not have been given. It seems probable that the jury disregarded the instruction, since the evidence shows that the loss of his eye was the principal injury suffered by the plaintiff, and the other injuries suffered were so inconsiderable as not to justify the general verdict of the jury.

The defendants suggest in their brief that "it is a well-settled rule of law in this state that it is the duty of the jury to follow the instructions of the court, whether said instructions are right or wrong, and if they fail to do so their verdict is contrary to law, and should be set aside, and a new trial ordered." They assume that this rule is absolute and applies in the broad terms in which it is stated to all cases under all circumstances. Mr. Thompson in his work on Trials (vol. 2, sec. 2402) says: "Of course, it can never be said that the jury were misled by the giving of erroneous instructions, where they have reached the correct result by their verdict. Accordingly, it is the practice of most of the courts, before passing upon exceptions to instructions, to look into the evidence and see if the verdict was right, and, if it is found to be so, the court will look no further." In Tilman v. Stringer, 26 Ga. 171, it is held that, "although the court charge the law erroneously, still, if the verdict of the jury be right, no new trial will be granted." See, also, Pratte & Cabanne v. Judge of Court of Common Pleas, 12 Mo. 194; Hannum v. Belchertown, 19 Pick. (Mass.) 311; Potter v. Hopkins, 25 Wend. (N.Y.) 417. These and other early cases hold that when the court can see from the whole record that the party complaining has not been prejudiced by the erroneous instruction, and justice has been done in the case, the error will be disregarded, and the judgment affirmed. Later cases in the several states have generally followed this rule. We think that this rule is sound, and that the decisions of this court, when carefully examined, are not necessarily inconsistent with it.

In Aultman & Co. v. Reams, 9 Neb. 487, 4 N.W. 81, in an opinion by Mr. Justice COBB, this court said: "Whether right or wrong, it was the duty of the jury to respect and obey the instructions of the court, and for their failure to do so the verdict should have been set aside; and it was error for the district court to refuse to do so." He cites as authority for this statement the case of Jewett & Root v. Smart & Gillett, 11 Iowa 505. In that case the trial court granted a new trial, "upon the ground that the verdict was contrary to the evidence and the instructions of the court." The appeal was taken from this order of the trial court granting a new trial. The supreme court refused to reverse the order, remarking that, "whether right or wrong, it was the duty of the jury to regard them as the law." In this state no appeal is allowed from an order granting a new trial until after the new trial is had and the case finally disposed of in the trial court. The Iowa decision might very well be cited as authority in a case where the instruction of the trial court was right, and the jury disregarded both the instruction and the evidence, but it is not authority for the proposition that the judgment of the trial court must be reversed in all cases where...