Torpy v. Johnson

• Citation: 62 N.W. 253,43 Neb. 882
• Parties: TORPY v. JOHNSON ET AL.
• Decision Date: 19 February 1895
• Court: Nebraska Supreme Court

43 Neb. 882

62 N.W. 253

TORPY

v.JOHNSON ET AL.

Supreme Court of Nebraska.

Feb. 19, 1895.

Syllabus by the Court.

1. In an action for contribution by one joint wrongdoer against another, the test of recovery is whether the plaintiff, at the time of the commission of the act for which he has been compelled to respond, knew that such act was wrongful.

2. Evidence held to warrant a direction against the plaintiff, a licensed saloon keeper, in an action for contribution from the defendant, also a saloon keeper, on the ground that the furnishing of liquor to an habitual drunkard, for which he had been compelled to respond, was known by him to be wrongful and unlawful. Johnson v. Torpy, 53 N. W. 575, 35 Neb. 604.

Error to district court, Johnson county; Babcock, Judge.

Action by William Torpy against John W. Johnson and others. Judgment for defendants, and plaintiff brings error. Affirmed.Daniel F. Osgood, for plaintiff in error.

E. W. Thomas, S. P. Davidson, and J. Hall Hitchcock, for defendants in error.

POST, J.

This cause was before us at the September, 1892, term, at which time it was held that the plaintiff herein, Torpy, was not entitled to contribution from the defendant Johnson on account of money paid to satisfy a judgment on the bond of the former as a licensed saloon keeper. See Johnson v. Torpy, 35 Neb. 604, 53 N. W. 575. The principle therein recognized is that contribution will not be enforced in favor of a wrongdoer who knew at the time of the commission of the act for which he has been compelled to respond that such act was wrongful.

The judgment on account of which contribution is sought in this case was recovered in the district court of Johnson county in an action by the widow of William Rowell, and the wrong alleged was the selling and furnishing of liquor which caused or contributed to the death of the deceased. We held on the former hearing that, since Rowell was admitted to have been a common drunkard at the time of the furnishing to him by Torpy of the liquor for which the recovery was allowed, the latter is presumed to have known that he was doing an unlawful and wrongful act, and therefore not entitled to contribution from Johnson, who is alleged to have furnished liquor which also contributed to the result stated. Torpy attempted on the second trial to overcome the presumption of notice by proof that he was not aware of Rowell's character for sobriety; that his (Rowell's) reputation was that of a sober man; and...