Wardell v. McConnell

• Decision Date: 06 January 1888
• Parties: WARDELL ET AL. v. MCCONNELL.
• Court: Nebraska Supreme Court

23 Neb. 152

36 N.W. 278

WARDELL ET AL.

v.MCCONNELL.

Supreme Court of Nebraska.

January 6, 1888.

Syllabus by the Court.

Persons licensed to sell intoxicating liquors are jointly and severally liable for all damages resulting from their traffic, and actions may be maintained against them jointly for all damages to which they have contributed by the sale of liquors.

Principals and their sureties upon license bonds are liable to an action for damages jointly with the principals and sureties upon other bonds of a like character, where all the principals have contributed to the same injury by the sale of intoxicating liquors.

The sureties upon the bond of a licensed vendor of intoxicating liquors are liable not only for the damages resulting directly from the acts of their principals, but for all damages to which such acts contribute. And where, during the existence of a license based upon such bond, the principal sells intoxicating liquors to one who is disqualified to earn a support for his family by reason of his intoxication, the liability of the surety attaches and continues throughout the period of such disqualification, whether the same terminates during the license year, or continues for a longer time.

Where a married woman sues upon license bonds for loss of support for herself and children, occasioned by the disqualification of her husband to earn such support, by reason of his intoxication, she does not sue in the capacity of a guardian or next friend for her children, but the action may be maintained by her in her own name and right, and the damages, when collected, must be paid to her to be used as she may see proper for the maintenance of herself and children. In such action she may join her children with her, or she may prosecute the suit in her own name for the whole damages, as she may elect, it being shown by her petition that she has such children who are deprived of their means of support by reason of the disqualification of the father or person upon whom such support devolves.

Error to district court, Richardson county; BROADY, Judge.

The plaintiff, Annie B. McConnell, brought this action against W. W. Wardell and others, defendants, the suit being brought upon the several bonds of those whom it was alleged had sold plaintiff's husband intoxicating liquors, joining with them the sureties on their bonds. Verdict for plaintiff for $800, of which $300 was held to be excessive; and judgment was rendered against all the defendants for $500, and they bring error.

Isham Reavis and J. D. Gilman, for plaintiffs in error.

F. Martin and E. W. Thomas, for defendant in error.

REESE, C. J.

This was an action against plaintiffs in error for damages resulting to defendant in error, and for her child, from loss of support by reason of the intoxication of her husband. The suit was brought upon the several bonds of those whom it was alleged had sold plaintiff's husband intoxicating liquors, and with them were joined their sureties upon their bonds.

Separate answers were filed by the sureties on each bond, and by which, among others, they presented the defense of a misjoinder of causes of action, and a misjoinder of parties defendant. The allegations of the petition were denied, except as to the execution of the several bonds declared upon; and it is alleged that defendant in error contributed to the production of the intoxication of her husband, by purchasing for and furnishing to him intoxicating liquors, and by directing and procuring others to do so, and also by drinking with him of the liquors furnished to him. The reply was a general denial of all the allegations contained in the answers. The time during which defendant in error alleges she was deprived of support by the intoxication of her husband, who was a physician and surgeon, is alleged to have been during the years 1883, 1884, and 1885. Among others, the trial court gave to the jury an instruction to the effect that if defendant in error assisted in keeping her husband intoxicated by encouraging and influencing him to drink liquors which intoxicated him, this would defeat her right to recover in her own behalf, and her recovery would be limited to the damages resulting from the loss of support for her child. There is no question presented as to whether this instruction was correct or incorrect, but under the recent decision of this court in Buckmaster v. McElroy, 20 Neb. 557, 31 N. W. Rep. 76, its soundness may well be doubted. The verdict of the jury was both general and special, and is here copied in full, omitting the title and other formal parts:

“We, the jury in this case, being duly impaneled and sworn and affirmed, do find and say: (1) That said defendants did each and every one, except as hereinafter mentioned, lay themselves liable by selling plaintiff's husband intoxicating drinks; (2) that we do find damages for Annie B. McConnell, as representative for her child, Willie, in the sum of eight hundred dollars, but to Annie B. McConnell, in her own behalf, nothing; (3) that we find, according to the evidence, that the above-named amount shall be paid by the said defendants as follows, to-wit: W. W. Wardell and his sureties, viz., Cresentia Goehling, J. F. Gardner, J. C. Stump, S. M. Saylor, P. W. Berkhouser, for the fiscal year commencing May, 1883, and ending May, 1884, damages in the sum of $200. Also, W. W. Wardell and his sureties, P. W. Berkhouser, S. M. Saylor, Cresentia Goehling, for the fiscal year May, 1884, and ending May 4, 1885, damages in the sum of $200. Also John Gunn and Martin Goehling, as the firm of Gunn & Goehling, and their sureties, Cresentia Goehling, Louis Statder, John Statder, Peter Luginbell, John Kutler, for the fiscal year commencing May 4, 1884, and ending May 4, 1885, damages in the sum of $300. Also, James Cottier and his sureties, Alf. Stump and Charles L. Frederick, for the fiscal year commencing May, 1883, to May 4, 1884, damages in the sum of $100; (4) that Cresentia Goehling as principal defendant no cause of action.”

“SPECIAL FINDINGS.

Was J. B. McConnell disqualified by intemperance from earning a support for his family for the period of three years immediately preceding September 17, 1884? Answer. Yes. Has any of the defendants given or sold to J. B. McConnell intoxicating drinks during the period of such disqualification? A. Yes. Which of them and during what years? A. W. W. Wardell and his sureties for the year 1883 and 1884; Gunn & Geohling and their sureties for the years 1884 and 1885; James Cottier and his sureties for the year 1883 and 1884. Did plaintiff by her own fault contribute to the intoxication of her husband, and of which she complains? A.______”

A joint motion for a new trial was filed by all the unsuccessful defendants, which was overruled upon defendant in error entering a remittitur of $300; the damages being held excessive to that extent. Judgment was then rendered against all the plaintiffs in error for the sum of $500, without reference to the apportionment made by the jury in their verdict. The apportionment of damages by the verdict of the jury was made by direction of the court, in its instructions. But as the final judgment was rendered without reference to such apportionment, no further attention need be given to that part of the case.

There are two questions involved in this case. The first to which our attention will be given is as to the right of defendant in error to maintain a joint action against the principals and their several sureties. This also involves the right to maintain suit against principals, and their sureties, upon...