Golden v. Newbrand

• Decision Date: 09 October 1879
• Citation: 2 N.W. 537,52 Iowa 59
• Parties: GOLDEN v. NEWBRAND ET AL
• Court: Iowa Supreme Court

2 N.W. 537

52 Iowa 59

GOLDEN v. NEWBRAND ET AL

Supreme Court of Iowa, Des Moines

October 9, 1879

Appeal from Mahaska Circuit Court.

IT is stated in the petition that the "defendants unlawfully willfully and maliciously killed David Golden," and this action is brought to recover damages caused by said act. The answer consisted of a general denial. There was a trial before the court. On the conclusion of the plaintiff's evidence the defendants moved the court to exclude all evidence introduced, "because it was incompetent immaterial and irrelevant, and failed to show any liability on the part of the defendants." The motion was sustained and judgment rendered for the defendants for costs. The plaintiff appeals.

AFFIRMED.

Williams & McMillen, for appellant.

John F Lacey, for appellees.

OPINION

SEEVERS, J.

I.

At the proper time defendants asked the court to make a finding of facts. As this was not done, it is insisted this constitutes prejudicial error. If no competent evidence was introduced, no finding of facts could be made. The theory of the court was that no fact had been established by legitimate evidence. The case stood before the court as if no evidence had been introduced. If this is correct, then there was no error in failing to make a finding of facts.

II. Using the language of appellant's counsel, the following facts were established: "That the defendants, ever since 1876, have been owning and operating a brewery in the city of Oskaloosa, Iowa under the firm name and style of Blattner & Newbrand, and that Charles Blattner, during all that time, has been and is now their superintendent, managing and running the business, and that one Max Roenspeiss during all that time has been and is now a hand employed in the business there under the control of Charles Blattner, and paid his wages by him out of the firm moneys, and that a part of his business was to guard the brewery, and he slept there at night for that purpose, and that there was a revolver kept there by the firm, and Roenspeiss had access to it and slept with it under his pillow at night; that defendants were engaged in the business of manufacturing and selling beer, and, like all beer saloons, rows were likely to occur, and Roenspeiss was empowered to protect the property and to quell disturbances, and worked there in the business generally.

"In the afternoon of the day David Golden was killed, he and his brother were there drinking beer, and got kicked out of the brewery. Afterwards, about supper time, they went back to the brewery and drank some more beer, and being a little drunk mad and crazy, John Golden got into a little fracas with John Mackey, and they skirmished until they got out of the brewery. In the meantime Max Roenspeiss came out of the office, where the revolver was kept, and approached...