Warrick v. Rounds

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 ex — 414 — tent 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., 313, 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. — 415 — 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. ITe 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 evidence.” Upon this point it is sufficient to say there was a sharp conflict in the testimony. If the jury believed the testimony of defendant in error and her witnesses, the case was amply made. The oft-repeated purchase of liquor by Rounds, his carrying bottles of liquor home with the label of plaintiff in error attached to them, his constant and almost uninterrupted intoxication, are fully sworn to. The sales of liquor are, in the main, •denied by plaintiff’ in error. The question as to the Weight of the testimony was peculiarly within the province of the jury. There was evidence sufficient to sustain the verdict. Sycamore Co. v. Grundrad, 16 Neb., 529, and cases there cited. It is said by plaintiff in error, that it was the duty of defendant in error to use ordinary and reasonable efforts — 416 — to protect herself from the consequences of the wrongful acts of plaintiff in error, and that the law imposes upon a», party injured from another’s tort the active duty of making reasonable exertions to render the injury as light as possible. Authorities are cited in support of this principle. We confess to some difficulty in applying the principles, here invoked to the case at bar, and just how thé rule cam apply is not fully stated in the brief of plaintiff in error. There is no suggestion anywhere of any default on. the part of defendant in error in the matter of making proper efforts to maintain the family, and it must be ad-, mitted that she was powerless to prevent the sale of liquors, to her husband. The suggestion that it was her duty to. notify plaintiff in error to cease selling her husband liquor-is not to be entertained to any degree. We think the rule-contended for has no application to this case. The next contention on the part of plaintiff in error is,, that the damages are excessive and that the verdict was. result of prejudice. We think not. On the contrary, the-verdict seems to have been produced by a conservative view of the evidence rather than otherwise. While a strict construction of the evidence would, in our-opinion, warrant a verdict of the amount returned, yet it might have been much larger. The purpose of the statute-is to give a complete remedy for all damages resulting from, a loss of' means of support. “ It in effect declares the act of producing intoxication a wrong, and makes every one-who has contributed to it by furnishing intoxicating liquors, a wrong-doer, and liable.” Elshire v. Schuyler, 15 Neb., 561. If the means of support is totally destroyed, the full value of such means is the measure of damages. If only-partially, then such damages should be allowed as would compensate for such partial destruction. This rule does, not limit a plaintiff in an action to such damages as might compensate for loss of time while intoxication lasts, but ex» — 417 — tends to such loss as is the direct result of such intoxication. An individual may be intoxicated three days out of a week for a length of time, and by reason of such intoxication be wholly incapacitated for business or labor during the other three days. In that event the means of support for the whole working or business time of the week is destroyed, and the person furnishing the liquor is liable for the whole damage sustained thereby. The language of the statute is that a married woman may maintain her action “for all damages sustained by herself and children on account of such traffic.” A careful computation of the time during which the intoxication lasts would not always be the correct basis from which to estimate damages. While the foregoing virtually disposes of the case at bar, yet it seems to be required that we say further, that the action of pláintiff in error seems to have grown out of an, impression indulged in by many, that druggists, in the language of one of the witnesses examined on'the trial, have “aright to sell what they want to” if sold under some pretext as “medicine.” That a little quinine mixed into a pint or a quart of whiskey or other intoxicant is a kind of leaven which will leaven the whole, and the druggist selling the mixture is guilty of no violation of. either the criminal or civil provisions of the law. Plaintiff in error testified in his examination in chief, on his own behalf, that he had no recollection of selling Rounds any liquor “ except two or three times he came in and said he had malaria and I sold it to him with quinine in it.” The law cannot with safety be thus evaded, and no druggist, whether he be the possessor of a permit or not, can by any such legerdemain evade its provisions. A druggist without a permit is absolutely prohibited from selling “ upon any pretext.” A druggist with a permit is — 418 — equally prohibited from selling except in the best of faith, and strictly for the purposes specified in the act. The judgment of the district court is affirmed. Judgment affirmed. The other judges concur