Barber v. City Drug Store

• Decision Date: 22 January 1916
• Docket Number: 30321
• Parties: W. C. BARBER, Appellee, v. CITY DRUG STORE et al., Appellants
• Court: Iowa Supreme Court

155 N.W. 992

173 Iowa 651

W. C. BARBER, Appellee, v. CITY DRUG STORE et al., Appellants

No. 30321

Supreme Court of Iowa, Des Moines

January 22, 1916

Appeal from Polk District Court.--W. H. MCHENRY, Judge.

THE trial court found that a nuisance, created by the illegal sale of intoxicating liquors, existed on certain premises owned by the defendant Conkling. It ordered the abatement of the nuisance, and a closing of the building, and decreed that the defendants, City Drug Store and Kucharo, be permanently enjoined and restrained from keeping and maintaining said nuisance, or any other like nuisance, either in said building or elsewhere in the judicial district. The defendants, other than Conkling, appeal.--Reversed in part, and Affirmed in part.

Reversed in part and Affirmed in part.

Stipp Perry & Starzinger, for appellants.

M. S Odle, for appellee.

SALINGER J. EVANS, C. J., LADD and GAYNOR, JJ., concur.

OPINION

SALINGER, J.

I.

We agree with the appellant that there has been no change in statute since State v. Findley, 45 Iowa 435, was decided, which affects the authority of that decision. (Compare Sections 1523, 1542 and 1554, Code of 1873, with Section 2382, Code Sup., 1913.) But we do not agree that the case at bar is ruled by the Findley decision. It reverses a conviction for selling liquor in violation of law. That it does so rightly is made manifest by the following statement made in it:

"There was no evidence tending to show that defendant knew of this sale, or that he kept intoxicating liquor for sale, or that there was any such in his possession or kept by him for any purpose. It is true the witness sold in defendant's store, a half-pint of whiskey to Walker, but for aught that appears the witness may have brought it there in his pocket; the evidence fails to show there was ever any other liquor in defendant's store or building than that sold by the witness to Walker. It is true that, if intoxicating liquor is found in the possession of the accused in any place except his private dwelling house, it is presumptive evidence such liquor was kept or held for sale contrary to law. . . . But there was no evidence tending to show that there was any such liquor in the defendant's possession or under his control."

This is perfect reasoning, in a case where the sole evidence was the sale of a half pint of whiskey containing cinchona; but can it be applied to this case wherein it is shown that there were at least four illegal sales to different persons made during some range of time, to wit, about October 23, 1913, and on March 29, April 3 and April 14, 1914? To hold that Findley's case rules here is to disregard the probative effect of repetition and the cumulative effect of recurrence in negativing coincidence, accident or lack of knowledge. One single sale of a small quantity of liquor sold by one employed to sell drugs might so readily occur without the knowledge, or the direct or implied consent, of the employer as that, where no more appears, a conviction requiring his knowledge and consent should be set aside. But every added sale is evidence, increasing in weight cumulatively with each repetition, that the owner of the store did know and consent. Say that one single sale affords no proof of either active or passive consent on his part, would that be so if a dozen sales a day were made to all comers for a period of six months? The supposed case and the one at bar exhibit no difference except in degree of proof--and Findley's case differs from both in that way only, and such difference must control the applicability of fact decisions, save in the very few instances where the facts in two cases are identical. All of which establishes, for the purposes of the present decision that, while the evidence is not as strong as in the supposed case, it is so much stronger than that in Findley's case as that we should sustain here a finding that liquor was illegally sold, though such a finding was rightly set aside in that case. So holding but applies the principle of the decisions that allow scienter to be shown by the doing of acts like unto the one in inquiry, and the reasoning of making title by adverse possession--that one who owns property would not suffer another to claim it for years and remain silent.

What we have said makes plain what consideration the citations which appellee urges to be controlling are entitled to. Stromert v. Johnson, 144 Iowa 682, 123 N.W. 336, is so much stronger in its facts as that we should reverse, were it not followed on facts substantially like those it has; though we affirmed the denial of a conviction where the record was no stronger than that in Findley's case. But while this is so, this attitude toward the Stromert case is an argument why we should affirm here, though the reversal in Findley's case is right. Dudley v. Sautbine, 49 Iowa 650, is inconsistent with neither Findley's case nor our instant holding. It affirms no more than that, where one puts an agent in charge of a saloon, the principal cannot escape liability for sales made to persons in the habit of becoming drunk, even though he has expressly forbidden such agent to sell to such persons. We conclude that someone made illegal sales in the premises enjoined and in the drug store which it is alleged that defendant Kucharo then owned and controlled.

II. But to sustain the decree against appellant Kucharo, there must, in addition, be evidence that, during the period in which sales were made, or at least at the times of several of the said sales, he was, as the complainant charges, "engaged in the sale" of what was sold; was the owner of the liquor sold or other liquor sold on the premises; kept liquor there "with intent to sell the same as a beverage upon said premises in violation of law", and was "the occupier of said premises". It will not suffice that someone is guilty as charged, and did what is charged from October 22, 1913, on to and including April 14, 1914, and that appellant Kucharo at some time became the owner of the store in which these things were done. What is there to sustain the allegation that appellant became owner, occupier or controller as early as, or earlier than, April 14, 1914?--the vital question. All of it follows:

The appellant testifies that he now owns this drug store; that, prior to April 14, 1914, he worked for the City Drug Store and had no interest whatever in the place; that he bought it sometime after April 15th,--cannot recall the exact time when he took over the place, but is sure that it was after April 15th. He adds that he never kept or sold intoxicating liquor in the place. Appellant's brother Gus states that appellant came to Des Moines on December 27, 1913, and stayed until he bought the place of Gus and one Eagan; that Gus and Eagan, in partnership, owned this store from sometime in January until about April 4, 1914; that Eagan then sold and Gus kept on until the latter part of April, 1914; that appellant did not work for them during this period, and that Gus was at no time during same in employ of appellant; that he sold to appellant but does not remember the date, except that it was after the latter part of April. Were this all, it could hardly be claimed that the allegations of the complaint charging ownership and control between October, 1913, and up to and including April 14, 1914, are sustained. What more is there?

2.

Allbright a witness for plaintiff, says, in chief, that he leased the place to "what is known as the City Drug Store Company" and does not know what that is or who composes it; that he leased it, "since about the middle of January, 1914"--all of which is no evidence that Otto Kucharo leased then or ever. Witness adds that "in the beginning", the deal of witness was with Richard Kucharo, to which he adds, "I am collecting rent from Otto Kucharo." As it is conceded that Otto now owns the store, it is...