Warrick v. Rounds

• Decision Date: 24 March 1885
• Parties: WILLIAM J. WARRICK, PLAINTIFF IN ERROR v. FRANCES ROUNDS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

22 N.W. 785

17 Neb. 411

WILLIAM J. WARRICK, PLAINTIFF IN ERROR v. FRANCES ROUNDS, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 24, 1885

ERROR to the district court for Cass county. Tried below before POUND, J.

AFFIRMED.

Strode & Clark, for plaintiff in error.

James E. Morrison and Beeson & Sullivan, for defendant in error.

OPINION

REESE, J.

This action was commenced by defendant in error as the wife of Reuben Rounds for damages sustained by her and her minor children by reason of their loss of support produced by the sale of intoxicating liquors to said Rounds, causing his intoxication and rendering him incompetent to support his family. The cause was tried to a jury, who returned a verdict in favor of defendant in error and fixed her damages at one hundred and sixty-five dollars. A motion for a new trial was made by plaintiff in error, which was overruled, and judgment was rendered on the verdict, but without costs. Plaintiff in error, who was defendant below, now brings the case into this court for review by petition in error.

We will notice the alleged errors in the order in which they occur in the brief of plaintiff in error.

It is alleged that the court erred in permitting defendant in error to answer the following interrogatory:

"During this last winter, state as nearly as you can, what it would take a week to support yourself and family in ordinary comfortable circumstance suitable for people in your condition, including your house rent?"

This question was objected to, the objection overruled, and she was permitted to answer. Her answer was as follows: "May be five or six dollars a week. Some weeks may be not so much." The testimony showed that defendant in error was the mother of four minor children; that up to the time of the inebriation of her husband he had provided for the family and since that time the burden of supporting the family had devolved to a great extent upon her, which she did by means of washing for other people. But it was shown that during a part of the time of this inebriation he was able to and did labor, and, to a limited extent, contributed to the support of the family. It was sought to show the extent of his failure. The testimony was competent for that purpose. It is true that this class of testimony is, perhaps, not the most satisfactory method of ascertaining the damages suffered by being deprived of the support due from a husband and father, yet, in connection with the testimony already given, it would furnish some aid in arriving at the true measure of damages. The answer of the witness seems to have been in accordance with this view. The amount named by her is quite within reason, and fails to show any extravagant ideas upon her part.

In Roose v. Perkins, 9 Neb. 304, 2 N.W. 715, it is said that the "right of support is not necessarily limited to the bare necessaries of life. The condition of the family" is proper to be considered by the jury. The testimony would have been incompetent in the first instance for the purpose of fixing the measure of damages, for, as said in Roose v. Perkins, the damages must be limited to that sustained by the loss of support, and is not governed by the amount necessary to maintain the family. He supported his family prior to the formation of his habit of drunkenness, he failed to do so afterward. In cases of this kind it would be very difficult to show the exact amount of actual loss. The family are deprived of an important element in the way of support, and in addition to this it is necessarily followed by the wasting of the means necessary to sustain and perpetuate the condition of intoxication. It, therefore, may become necessary to resort to testimony of the kind objected to for the purpose of aiding the jury in fixing the damages. In view of the other testimony already before the jury, it could not have misled them.

It is next insisted that the court erred in requiring plaintiff in error upon cross-examination as a witness, while on the stand, to answer the question as to whether he had a druggist's permit or a license to sell liquors. We think this question was wholly immaterial so far as the issues in the case were concerned, but not prejudicial to plaintiff in error. He admitted being a druggist, that he kept liquor in his store, and that he sold liquors for proper purposes. He admitted having sold some to Rounds but put quinine in it. If he had been in possession of a permit it would doubtless have been made to appear in his defense. The fact that no such defense was presented, was, in effect, an admission that he had none. His answer to the question could not have changed his position before the jury.

Objections are made to the instruction given to the jury by the court, but we will pass this part of the case without notice, as no exceptions were taken to any action of the court in that behalf.

The next proposition requiring attention is, that defendant in error "did not establish her claim by a fair preponderance of...