Torpy v. Johnson

62 N.W. 253, 43 Neb. 882, 1895 Neb. LEXIS 424

• Court: Nebraska Supreme Court
• Decided: February 19, 1895
• Docket: No. 6457
• Status: Published

Opinion

Post, J.

This cause was before us at the September, 1892, term, at which time it was held that the plaintiff herein, Torpy, was not entitled to contribution from the defendant Johnson on account of money paid to satisfy a judgment on the bond of the former as a licensed saloon-keeper. (See Johnson v. Torpy, 35 Neb., 604.) The principle therein recognized is that contribution will not be enforced in favor of a wrong-doer who knew, at the time of the commission of the act for which he has been compelled to respond, that such act was wrongful. The judgment on account of which contribution is sought in this case was recovered in the district, court of Johnson county in an action by the widow of William Rowell, and the wrong alleged was the selling and furnishing of liquor which caused or contributed to the death of the deceased. We held on the former hearing that since Rowell was admitted to have been a common drunkard at the time of the furnishing to him by Torpy of the liquor for which the recovery was allowed the latter is presumed to have known that he was doing an unlawful and wrongful act, and therefore not entitled to contribution from Johnson, who is alleged to have furnished liquor which also contributed to the result stated. Torpy attempted on the second tidal to overcome the presumption of notice by proof that he was not aware of Rowell’s character for sobriety, that his, Rowell’s, reputation was that of a sober man, and that the furnishing of the liquor was-not, therefore, wrongful within his knowledge. The district court decided that there was an entire failure of proof to sustain that contention, and accordingly directed a verdict for the defendant, upon which judgment was subsequently entered and which it is sought to reverse by means of this proceeding.

The direction of the district court we regard as altogether proper. The record establishes by positive proof that which we found as an inference from the facts in evidence on the former hearing, viz., that the furnishing of the liquor to' Rowell was not only wrongful in its legal sense, but was so understood by the plaintiff at the time it was so furnished. In his answer to the petition of Mrs. Rowell it is distinctly alleged that the plaintiff’s husband had for more than eighteen years been addicted to the excessive use of intoxicating liquors; that for a long time prior to the date named in the petition the deceased had been almost continuously in a state of intoxication, and instead of contributing to the support of his family, had long been a charge upon them. He admits that he was, some time during the year 1887, notified by Mrs. Rowell not to furnish liquor to her husband, for the reason that he, Rowell, was drinking to excess. He denies having furnished liquor to the deceased during that year, but admits that the latter drank in his saloon during the year 1888. The proof that the plaintiff was aware of Rowell’s habits is of the clearest and most conclusive character. Indeed, if •there is in the record evidence to the contrary it has not •been called to our attention. True, plaintiff in his direct •examination makes a pretense of denial, but his testimony is of too conflicting and unsatisfactory a character to be made the basis of a finding in his favor, even if uncontradicted; but when viewed in the light of the admitted facts, including the plaintiff’s sworn answer in the former action, his olaim at this time is evidently a mere pretense, and unworthy of serious consideration. The judgment is right and is

Affirmed.