Whipple v. Rosenstock

Barnes, J. The plaintiff commenced this action against John H. Rosenstock, Alexander Butz, Charles A. Schwedop and Leonard Bauer, who were licensed saloon-keepers in the city of Lincoln; and them bondsmen, to recover damages which she alleged had accrued to herself and her two infant children by reason of the sale of intoxicating liquor to her deceased husband, Frederick H. Whipple. The action as originally commenced was against the persons and bondsmen above named, together with some others. It was alleged in the petition that from January 1, 1912, the saloon-keepers therein named had sold, given to, and furnished her husband, Frederick H. Whipple, with large quantities of intoxicating liquors, which he drank, and thus had caused him to become intoxicated, debauched and an habitual drunkard; that her husband had abused her and neglected to furnish any support for herself and minor children; that before he became so debauched he was kind to her and had furnished his family suitable support in the way of food and clothing; that by reason of the use of the intoxicating liquors so sold, given and furnished him by defendants, he became sick and diseased in mind and body, and died on the 18th of August, 1912, of an injury to his arm, complicated by delirium tremens, and by reason of which she and her children had sustained damages in the sum of $20,000, for which she prayed judgment. The defendants answered separately. Each of the saloon-keepers denied that he had sold, furnished or given plaintiff’s husband any intoxicating liquors, denied that Whipple was a sober and industrious man, and alleged that for many years he had been a confirmed drunkard. 'They denied that plaintiff had been damaged in her means of support by reason of any sales of liquor made by them to her husband; and the answers further denied that plaintiff was the wife of Frederick H. Whipple. ’ They admitted that they were licensed saloon-keepers doing business in the city of Lincoln, and denied all the other allegations [155] of tbe petition. Tbe reply was a general denial of tbe facts alleged in the answers. When tbe case came on for trial in tbe district court for Lancaster county, and after plaintiff bad introduced her evidence, tbe action was dismissed as to all of the defendants other than tbe saloon-keepers above mentioned and their sureties. Tbe petition was amended so as to allege tbe sale to Whipple of intoxicating liquors from tbe 1st day of May, 1912, to tbe 15th day of August of that year, and tbe case was finally submitted to tbe jury as to such sales alone. After all of tbe evidence bad been introduced, instructions were given, which were excepted to by each of tbe defendants. Tbe jury returned a verdict in favor of tbe plaintiff and against all of tbe defendants for tbe sum of $10,000, on which tbe court rendered judgment, and the defendants have appealed. It is contended by tbe appellants that the evidence is insufficient to sustain a verdict for tbe plaintiff. Tbe record fairly shows that each one of the defendant liquor-dealers sold and furnished to plaintiff’s deceased husband intoxicating liquors, including beer, at some time during tbe period from tbe 1st day of May to tbe 15th day of August, 1912; that Frederick H. Whipple died on tbe 18th day of August, 1912, as alleged in plaintiff’s petition. While there is some conflict in tbe evidence, that branch of . tbe case was properly submitted to tbe jury. Under tbe provisions of chapter 40, Rev. St. 1913, as construed by tbe decisions of this court, tbe verdict of tbe jury on that question should be sustained. Tbe saloon-keepers were jointly liable on their bonds for whatever damages tbe plaintiff may have sustained by reason of tbe traffic. Roose v. Perkins, 9 Neb. 304; Kerkow v. Bauer, 15 Neb. 150; Warrick v. Rounds, 17 Neb. 411; Gorey.v. Kelly, 64 Neb. 605. Tbe cases cited also dispose of tbe appellant’s claim of misjoinder adversely to their contention, as will presently be seen. It is strenuously contended that the. ver diet in this case was excessive. There seems to be merit in this contention. [156] It appears from the record that the plaintiff and Frederick H. Whipple were married on the 28th day of June, 1904; that two children were born to them, both of whom are living, and at the time of the trial were aged five and eight, respectively; that at the time of the marriage the plaintiff’s husband had employment as a buggy washer at the Palace livery stable in the city of Lincoln. The amount of his earnings at that time is not shown, but it is apparent that they were not large. It also appears that at the time he was addicted to the use of intoxicating liquors, but not to the extent of destroying his ability to work. For some time he had no steady employment, but worked at different places in the city and in private families; and his earnings did not exceed $35 a month. It also appears that about four years before his death Whipple became an itinerant peddler of horseradish, peanut butter, hominy and some other household articles of food. There is no evidence in the record as to the amount of his earnings while he was engaged in that business, but it seems clear that they must have been limited to a rather small sum. A little later on Whipple commenced to prepare horseradish and hominy on his own account. This was peddled, together with icecream, popcorn, pop and some other things which he purchased of the manufacturers. These articles were peddled by him from about the first day of June until the latter part of September of each year. The record also shows that he sold hominy, horseradish and peanut butter a great part of the year. The plaintiff testified that he made in his business $150 a month, but that was purely her opinion without any competent evidence to support it. She also testified that he furnished for the support of his family, $25 a week. That testimony was also her opinion, and is not supported by any other evidence. The testimony of the grocer of whom Whipple bought his groceries was that his bills ran from $3.50 to $5 a week, but he was unable to state that Whipple bought all his meats and foods from him. It may be presumed that, while Whipple had credit at the157 grocery and ran a weekly account, lie bought practically all of his supplies from him. There is no evidence in the record as to how much or what kind of clothing Whipple furnished his family. Plaintiff testified that after the 1st of January, 1912, he furnished them nothing, and that the only money she was able to obtain from him was $5. The record clearly shows that Whipple at all times during the last ten years was an habitual user of intoxicating liquors; that his drinking had increased by January, 1912, to such an extent that he was unable to attend to his business; that just before his death he was trying to sell his wagon and outfit for $40; that his business had become unprofitable'; that he procured intoxicating liquors in bottles and jugs from some place other than that disclosed by the testimony, and kept intoxicating liquors in his house, his rvagon and other places; that he drank to such an extent that on the evening of the 14th day of August, 1912, he fell and broke his arm; that his wife helped him into the house, undressed him, and put him to bed; that on the morning of the 15th a physician was called, who dressed the arm and sent him to a hospital, where he remained until the afternoon of the 17th of August, when he was sent home because of his conduct; that when he arrived at the house he became wild and incoherent and developed symptoms of delirium tremens; his conduct was such that his wife was afraid of him, and he was taken to a room in the county jail, where he died on the morning of August 18, 1912. A the time of Whipple’s death he was 54 years of age and had a life expectancy of 18 years. 'Considering the evidence contained in the record, we are of the opinion that the verdict was excessive; that by Whipple’s death plaintiff and her children could not have been damaged in their means of support in any sum exceeding $5,000. The amount of plaintiff’s recovery having- been reduced to the penalty mentioned in a single bond furnished by the sureties there can be no contention of a misjoinder of of parties defendant. Plaintiff therefore is required to [158] file a remittitur in the sum of $5,00Q within 29 days, and, if this is done, the judgment of the trial court will be affirmed for that amount, with the costs of that court; otherwise, the judgment will be reversed and the cause remanded. Affirmed on condition. Letton, J., not sitting.