Wunsewich v. Olson
| Decision Date | 01 June 1917 |
| Docket Number | 20,255 - (92) |
| Citation | 162 N.W. 1054,137 Minn. 98 |
| Parties | JOSEPHA WUNSEWICH v. EDWARD OLSON AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for Pine county against a saloonkeeper and the surety on his bond to recover $7,500, for the death of plaintiff's adult son, upon whom she was entirely dependent for support. The case was tried before Nethaway J., who granted defendants' motion for a directed verdict in their favor. From an order denying her motion for a new trial, plaintiff appealed. Reversed.
Appeal and error -- printing of record -- right of respondent.
1. The rules require an appellant to print only so much of the record as will fully and clearly present the questions raised by him. If respondent deems other parts of the record necessary to properly present all the questions involved, he may print a supplemental record, or refer to the folios or pages of the settled case on file.
Action on saloonkeeper's bond -- leave of court unnecessary.
2. Suit may be brought upon a liquor dealer's bond without obtaining leave of court to bring such suit.
Sale of intoxicating liquor -- liability of seller -- question for jury.
3. Plaintiff's son became intoxicated and was struck and killed by a locomotive. The evidence made a question for the jury as to whether the accident happened in consequence of his intoxicated condition, and as to whether such condition was in part attributable to liquor sold him in defendant Olson's saloon while he was intoxicated.
Thomas J. Joyce, for appellant.
John Jenswold and John D. Jenswold, for respondents.
Plaintiff brought this action upon a saloonkeeper's bond to recover damages for the death of her adult son, Adolph Wunsewich, who was killed by a railroad train while intoxicated. At the close of the evidence, defendants moved for a directed verdict in their favor on the ground that plaintiff had failed to procure leave of court to bring suit upon the bond, and on the further ground that she had failed to prove any breach of the bond. The trial court, after remarking that the evidence made a question for the jury as to whether there had been a breach of the bond, granted the motion, for the reason that plaintiff had not been given leave to bring suit upon it. Plaintiff appealed from an order denying a new trial.
Defendants made a preliminary motion to dismiss the appeal under the rules for the failure of plaintiff to serve or print the evidence. Plaintiff has raised no questions which require a consideration of the evidence. She rests her appeal upon the contention that the court erred in holding that her failure to obtain leave of court to bring the suit entitled defendants to a verdict. The rules require her to serve and print only so much of the record as will fully and clearly present the questions raised by her. This she has done. If defendants deem other parts of the record necessary to properly present all the questions involved, the rules authorize them to print a supplemental record, or to refer to the folios or pages of the settled case on file. The motion is denied.
The first question is whether it was incumbent upon plaintiff to make an application to the court and obtain leave to sue upon the bond before she brought her suit.
The statutes require a plaintiff to procure leave of court before bringing suit upon certain statutory bonds. A plaintiff other than the state or body politic to whom the bond is given, must procure leave of the district court before bringing suit upon the official bond of a public officer (G.S. 1913, §§ 8243, 8244). Leave to sue must be obtained from the probate court before bringing suit upon a bond given in proceedings in that court (G.S. 1913, § 7421). The statutes also authorize suits upon certain statutory bonds, without providing that leave to sue shall first be obtained. No such provision is contained in the statute requiring bonds from persons who contract to perform public work for the state or its municipalities (G.S. 1913, §§ 8245-8247); nor in the statute requiring bonds from liquor dealers, and under which the bond in controversy was given (G.S. 1913, §§ 3116, 3117). It is contended that the provision in respect to...
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