Johnson v. Torpy , 35 Neb. 604 ( 1892 )

Post, J.

This was an action in the district court of Johnson county to enforce contribution on account of a judgment against the defendants in error on the bond of Torpy, a licensed saloon-keeper. It appears from the petition that said Torpy obtained a license from the village board to sell liquor in the village of Sterling, and gave bond as required by law, with the other defendants in error as sureties, and that Johnson, the plaintiff in error, was' also a licensed saloon-keeper in said village, having given bond with the other plaintiffs in error as sureties. It is further alleged that during the year for which said licenses were issued, Sarah Rowell commenced an action in the district court of said county against the plaintiff below, Torpy, on his bond, the cause of action stated being the sale to her husband, William Rowell, of intoxicating liquors which caused or contributed to the death of the latter; that said action resulted in a judgment against Torpy and sureties in the sum of $1,000 and costs, which they have fully satisfied, and that the plaintiff in error, Johnson, defendant below, sold liquor to said Rowell which also contributed to his death. They accordingly ask judgment for $740, being the one-half of the amount paid to satisfy the judgment aforesaid, with costs. A trial was had in the district court which resulted in a verdict and judgment for the plaintiffs below, whereupon the case was removed to this court by petition in error. On the part of the plaintiffs in error it is claimed that under the provisions of our statute the furnishing of intoxicating liquors must be regarded as a tort and all who participate in it as wrong-doers, between whom there can be no enforced contribution, while on the part of the defendants in error it is contended that the cause of action against them for the furnishing of liquor to Rowell was a mere statutory liability for an act not illegal either at common law or by statute; hence, all who contributed to his death are as between themselves jointly liable therefor. After a careful examination of the record we have reached the same conclusion as counsel for plaintiffs in error, although by a somewhat different course of reasoning, viz.: From the allegations of the petition of Mrs. Rowell it is apparent that the said William Rowell was, at the time the cause of action accrued against defendants in error, a common or habitual drunkard within any judicial definition of the term. [Com. v. Whitney, 5 Gray [Mass.], 86; Com. v. McNamee, 112 Mass., 286; Magahay v. Magahay, 35 Mich., 210.)

The testimony of witnesses for defendants in error, which is not contradicted, clearly proves that for several months last previous to his death, which occurred on the 28th day of August, 1888, said Rowell was in the habit of drinking to excess; that from the time the license was issued to Torpy, in the month of May previous, he, Row-ell, was generally under the influence of liquor when possessed of the means of procuring it, and that his reputation was that of a common drunkard.

The sale of intoxicating liquor to a common or habitual drunkard is unlawful in a double sense — first, as the ground for a civil action by one who is injured thereby; and second, a violation of the statute, which imposes upon the sellers a severe penalty therefor. (See section 10, chapter 50, Compiled Statutes.) In determining whether the right of contribution exists in favor of one wrong-doer against another the test is, must the party demanding contribution be presumed to have known that the act for which he has been compelled to respond was wrongful? If not, he may recover against one equally culpable,, but otherwise he is without remedy. (Maxwell, Code Pleading, 64, 172; Jacobs v. Pollard, 10 Cush. [Mass.], 287;, Armstrong Co. v. Clarion Co., 66 Pa. St., 218; Lowell v. R. Co., 23 Pick. [Mass.], 24; Acheson v. Miller, 2 O. St., 203; Barley v. Bussing, 28 Conn., 455; Adamson v. Jarvis, 4 Bing. [Eng.], 66.)

Since the proofs clearly show that Rowell was an habitual drunkard, within the meaning of the statute, at the time of the sale to him of the liquors for which his widow recovered in the action against Torpy, the latter must be presumed to have known, when he sold such liquor, that he was»doing a wrongful and unlawful act, for which he was liable to be punished by indictment. Had he been on trial for a violation of the statute against selling intoxicating liquors to an habitual drunkard, it would not have been necessary for the state to allege or prove knowledge by him that the party named in the indictment was an habitual drunkard; that fact, under our statute, is purely a matter of defense. (Bishop, Statutory Crimes, sec. 1022.) As the sale of the liquor by Torpy to Rowell appears from the evidence to have been wrongful within the knowledge of the former, the judgment of the district court should be reversed and the ease remanded for further proceedings therein.

Reversed and remanded.

The other judges concur.