Wiley v. Nat'l Sur. Co., No. 20158.

CourtSupreme Court of Nebraska
Writing for the CourtDEAN
Citation170 N.W. 349,103 Neb. 68
PartiesWILEY ET AL. v. NATIONAL SURETY CO. ET AL.
Decision Date26 December 1918
Docket NumberNo. 20158.

103 Neb. 68
170 N.W. 349

WILEY ET AL.
v.
NATIONAL SURETY CO.
ET AL.

No. 20158.

Supreme Court of Nebraska.

Dec. 26, 1918.


[170 N.W. 349]


Syllabus by the Court.

The liability of the members of a partnership for a tort that grows out of the partnership business is joint and several, and they may be sued in the county where one of the members resides, and summons may be issued to other counties for any person participating in the tort.

In an action against licensed saloon keepers and their sureties for damages for loss of support on account of intoxicants sold to plaintiff's husband, in which the jury returned a verdict against all defendants for an amount in excess of the sum stipulated in the bond, the district court has power to render judgment against the principal defendants for the full amount of the verdict, and may also render judgment against the sureties for the sum stipulated in the bond. The rule announced in Bergmann v. Koehn, 99 Neb. 525, 156 N. W. 1040, and reaffirmed in Hauth v. Sambo, 100 Neb. 160, 158 N. W. 1036, is adhered to.

Saloon keepers, who contribute by the sale of even a small quantity of intoxicants to a person while he is forming the drink habit, and their sureties, are liable in damages to the parties named in the statute for the loss of support.

In an action by a wife against licensed saloon keepers for loss of support occasioned

[170 N.W. 350]

by her husband becoming totally incapacitated by intoxicants sold to him by such saloon keepers, and from which he subsequently died, held, the Carlisle Table of Mortality is competent evidence of the life expectancy of the decedent.

The evidence examined, discussed in the opinion, and held, a verdict for $6,000 is not excessive.



Additional Syllabus by Editorial Staff.

In an action under Slocumb Law, for loss of support of plaintiff and children from defendants' sale of intoxicating liquors to plaintiff's then husband, a decree of divorce from him on ground of his habitual intoxication, after accrual of the action, making no provision for plaintiff or children, was not to be considered in determining amount of recovery.


Appeal from District Court, Madison County; Welch, Judge.

Action by Frances F. Wiley and others against the National Surety Company and others, impleaded with Edward Herbst and others. Judgment against defendants, and they appeal. Affirmed.

Cornish, J., dissenting.

T. J. Doyle, of Lincoln, and Barnhart & Stewart, of Norfolk, for appellants.

Kelsey & Rice, of Norfolk, and O. S. Spillman, of Pierce, for appellees.


DEAN, J.

Mrs. Frances F. Wiley, in behalf of herself and two minor children, sued certain licensed saloon keepers and the sureties on their respective bonds in Madison county, under the Slocumb Law (chapter 40, Rev. St. 1913) to recover damages for total loss of support, said to have been suffered by plaintiffs because of the sale of intoxicating liquors to her husband from May 1, 1910, to September 1, 1912, from the effects of which he subsequently died. Plaintiffs recovered judgment for $6,000 against the principals named in the bonds and $5,000 against the sureties, the latter sum being the amount of the liability named in each bond. All defendants appealed.

[1] The defendants who were held liable for the judgment, except Ray Weber, are nonresidents of Madison county. The saloons of all principal defendants were located in Pierce county. Weber was the only defendant who was served with summons in Madison county. All defendants appeared specially, and objected to the jurisdiction of the court on the ground that they were not lawfully served with summons. Defendants argued that the jurisdiction of the court depends alone on the service on Ray Weber, a member of the partnership of Smith & Weber, then doing a saloon business in Pierce county and they insist that the partnership of which Weber was a member could lawfully be served with process only in the county where the partnership is located, and that the service on Weber was therefore void. We do not believe that the law contended for by defendants is applicable to the present case. The objections to jurisdiction were properly overruled.

The liability of the members of a partnership for a tort growing out of the partnership business is joint and several, and when the partners are sued and served with summons as individuals, as happened in this case, they may be sued in the county where one of their members resides, and summons may be issued to other counties against any person participating in the tort. 20 R. C. L. p. 914, § 126; 1 Bates, Partnership, § 471; Rogers v. Ponet, 21 Cal. App. 577, 132 Pac. 851;Mathre v. Story City Drug Co., 130 Iowa, 111, 106 N. W. 368, 8 Ann. Cas. 275;In re Peck, 206 N. Y. 55, 99 N. E. 258, 41 L. R. A. (N. S.) 1223, Ann. Cas. 1914A, 798.

[2][3] Plaintiff's husband was a physician. They were married in 1904, when they were each about 25 years of age. From that time the family home was at the village of Osmond until after Dr. Wiley died. He successfully practiced his profession there until about 1 year before his death. At first they lived in rented property, but in 1909 they bought a home for $1,500, on which they paid $500. When they came to Osmond the doctor was of good physique and mentality, college bred and well equipped for a successful professional career. That he acquired and persisted in the drink habit at the respective saloons of the principal defendants at Osmond and at Pierce in the...

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6 practice notes
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...v. Wachosky, 57 Neb. 534, 77 N. W. 1080;Farmers' & Merchants' Bank v. Tate, 96 Neb. 142, 147 N. W. 213;Wiley v. National Surety Co., 103 Neb. 68, 170 N. W. 349. In Ayres v. West, 86 Neb. 297, 125 N. W. 583, 584, this court said: “The law is well settled that, in an action for a money judgme......
  • Hanson v. Hanson (In re Larson's Estate), No. 21020.
    • United States
    • Supreme Court of Minnesota (US)
    • January 10, 1919
    ...that respondent said: ‘Now the witnesses are here; now we are ready to sign the will.’ On cross-examination he testified that respondent [170 N.W. 349]said: ‘Now we are ready to sign; are you willing to sign it?’ All agreed that deceased answered simply: ‘Ya.’ She was sitting up in bed supp......
  • Pete v. Lampi, No. 24421.
    • United States
    • Supreme Court of Minnesota (US)
    • April 17, 1925
    ...798;Posch v. Lion Bonding Co., 137 Minn. 169, 163 N. W. 131;Wardell v. McConnell, 23 Neb. 152, 36 N. W. 278; Wiley v. National Surety Co., 103 Neb. 68, 170 N. W. 349; also 21 Ann. Cas., note at page 398. The court applied the correct rule. [4] The court gave a separate, but similar, charge ......
  • Pete v. Lampi, No. 24421.
    • United States
    • Supreme Court of Minnesota (US)
    • April 17, 1925
    ...Bonding Co., 137 Minn. 169, 163 N. W. 131; Wardell v. McConnell, 23 Neb. 152, 36 N. W. 278; Wiley v. National Surety 162 Minn. 500 Co., 103 Neb. 68, 170 N. W. 349; also 21 Ann. Cas., note at page 398. The court applied the correct The court gave a separate, but similar, charge in respect to......
  • Request a trial to view additional results
6 cases
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • May 29, 1931
    ...v. Wachosky, 57 Neb. 534, 77 N. W. 1080;Farmers' & Merchants' Bank v. Tate, 96 Neb. 142, 147 N. W. 213;Wiley v. National Surety Co., 103 Neb. 68, 170 N. W. 349. In Ayres v. West, 86 Neb. 297, 125 N. W. 583, 584, this court said: “The law is well settled that, in an action for a money judgme......
  • Hanson v. Hanson (In re Larson's Estate), No. 21020.
    • United States
    • Supreme Court of Minnesota (US)
    • January 10, 1919
    ...that respondent said: ‘Now the witnesses are here; now we are ready to sign the will.’ On cross-examination he testified that respondent [170 N.W. 349]said: ‘Now we are ready to sign; are you willing to sign it?’ All agreed that deceased answered simply: ‘Ya.’ She was sitting up in bed supp......
  • Pete v. Lampi, No. 24421.
    • United States
    • Supreme Court of Minnesota (US)
    • April 17, 1925
    ...798;Posch v. Lion Bonding Co., 137 Minn. 169, 163 N. W. 131;Wardell v. McConnell, 23 Neb. 152, 36 N. W. 278; Wiley v. National Surety Co., 103 Neb. 68, 170 N. W. 349; also 21 Ann. Cas., note at page 398. The court applied the correct rule. [4] The court gave a separate, but similar, charge ......
  • Pete v. Lampi, No. 24421.
    • United States
    • Supreme Court of Minnesota (US)
    • April 17, 1925
    ...Bonding Co., 137 Minn. 169, 163 N. W. 131; Wardell v. McConnell, 23 Neb. 152, 36 N. W. 278; Wiley v. National Surety 162 Minn. 500 Co., 103 Neb. 68, 170 N. W. 349; also 21 Ann. Cas., note at page 398. The court applied the correct The court gave a separate, but similar, charge in respect to......
  • Request a trial to view additional results

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