Bistline v. Ney Bros.

• Decision Date: 11 April 1907
• Citation: 111 N.W. 422,134 Iowa 172
• Parties: BISTLINE v. NEY BROS. ET AL.
• Court: Iowa Supreme Court

134 Iowa 172

111 N.W. 422

BISTLINE

v.NEY BROS. ET AL.

Supreme Court of Iowa.

April 11, 1907.

Appeal from District Court, Clay County; W. B. Quarton, Judge.

Action to recover damages on account of alleged unlawful sales of intoxicating liquors to plaintiff's husband. There was a judgment for the defendants, and the plaintiff appeals. Reversed.G. H. Martin and F. H. Helsell, for appellant.

Healy Bros. & Kelleher, for appellees.

WEAVER, C. J.

The defendants Ney Bros. were registered pharmacists, doing business at the town of Webb, Iowa, during the year 1904, and held a permit for the lawful sale of intoxicating liquors. During the year named, William Bistline, a young married man of 27 years of age, resided with his wife upon a farm about three miles from Webb. The evidence shows quite clearly that Bistline was in the habit of drinking intoxicating liquors to excess and frequently became intoxicated, with the usual result of more or less domestic unhappiness. On the evening of October, 29, 1904, Bistline, accompanied by one McClay, his hired man, visited the town of Webb. He returned home that night about half past 10 o'clock considerably intoxicated. His wife with her young child were in bed. She gave expression to some words of complaint or remonstrance to her husband. He manifested considerable excitement and, as was his wont when in a maudlin condition, shed tears. Leaving his wife he went upstairs to McClay's room where he procured a revolver, but McClay followed and took the weapon from him. He was afterwards heard to go out of the door, and was not seen again, till morning revealed his dead body at the barn some 300 feet distant from the house. The appearances indicated with considerable degree of certainty that as he went out through the kitchen he took a small rifle which he had left there, and with it had shot himself through the head, causing instant death. The petition alleges that on frequent occasions during the said year of 1904 and prior to his suicide, defendants had unlawfully sold to said Bistline intoxicating liquors, thereby contributing to and causing his frequent intoxication, and that on his visit to Webb on the evening of his death, defendants again unlawfully sold him such liquors, thereby causinghis intoxication, and that while so intoxicated, and because thereof, he took his own life. For the injury thus caused to her means of support plaintiff asks to recover damages. Defendants admit they are registered pharmacists holding permit for the lawful sale of intoxicants, but deny having made any unlawful sales to Bistline, and deny having caused or contributed to his intoxication. Numerous errors are assigned as grounds for the reversal of the judgment below, but we shall confine our review to those which seems to us decisive of the appeal.

1. Much testimony was offered and admitted on behalf of the defendant, to the point that defendants had no knowledge of Bistline's habits of intoxication, and that such sales of liquor as were made to him were made in good faith. It seems hardly necessary to say that under our statute every sale of intoxicating liquors to a person in the habit of becoming intoxicated or in the habit of using intoxicants as a beverage is made at the peril of the seller; and that in any prosecution therefor or of any cause of action based on such wrongful act, the good faith of the seller and his ignorance of the habits of the buyer constitute no answer or defense. He must “personally know” that the buyer is not addicted to such habit, or have within proof of such fact from some reputable third person. Code, § 2394. If he does not know he can refuse to sell, and if he sells without such knowledge, it is an election on his part to take the chances. The court seems to have given the proper instructions to the jury upon this point; but the testimony was not withdrawn from consideration nor its effect limited in application to any particular proposition on which it might possibly have been admissible.

2. Counsel for the plaintiff requested instructions to the jury, to the effect that it was not essential to her right of recovery that she prove the suicide of her husband was the natural or necessary consequence of his intoxication, but it was sufficient if the act was done by him while he was in fact intoxicated with liquor unlawfully sold him by the defendants. This request was refused, and at the request of the defendant, the court told the jury that before plaintiff could recover damages for injury to her means of support by the death of her husband, she must establish by a preponderance of the evidence that his intoxication was caused by liquors unlawfully sold him by the defendants, and that such intoxication “actually caused his death”; also that “if the evidence leaves it uncertain whether the state of mind of William Bistline which led to the purpose on his part to destroy his life resulted because of his intoxication” or from some other cause, plaintiff could not recover; also, that it was “indispensable” to such recovery that the jury should first find it to be “actually shown that the death of said Bistline was in fact caused or contributed to by his intoxication”; and that it must “not only appear that said Bistline did commit suicide; but that such suicide was caused by the intoxication.”

Following these propositions, the court gave the following instructions which we quote in full:

“(26) It does not follow that merely because a person injuries himself, or is injured while in the state of intoxication, that such intoxication is the cause of such injury, or that any person causing or contributing to such intoxication is liable for the injury.

(27) In order that the defendants, or any of them, may be held liable for any damages resulting to the plaintiff because of the death of William Bistline, it must be shown that the death was caused in a manner, and by means, which naturally resulted because of his intoxication so caused. The motives which lead a human being to acts of violence against himself or others, in order that liability should be created against one who furnishes to such person intoxicating liquors, must be of such character as to be naturally aroused, produced, or set in motion by means, and because of intoxication resulting from the use of such liquors. The mere fact, if it be a fact, that one who has used intoxicating liquors is guilty of acts of violence towards himself or others is not itself sufficient to show that such acts of violence were influenced or caused by such intoxicating liquors. As to whether it was so caused or not it is for you to say from the evidence.”

“(30) It is not enough in order that you may find a verdict against the defendants or either of them that you find that they made sales of intoxicating liquors or furnished intoxicating liquors to the said Wm. Bistline, and that such sales produced intoxication; in any event, the plaintiff cannot be entitled to a verdict, unless you can find that it is proven by a preponderance of the evidence that if said sales had not been made or such intoxicating liquors furnished by the defendants, or some of them, that the death of said Wm. Bistline would not have resulted.”

In our opinion, the instructions here quoted and the others of similar character to which we have made reference, do not correctly state the law. The statute under which this action is brought (Code, § 2418) provides that “every wife, child, parent, guardian, employer, or other person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person” shall have a right of action for the damages so sustained against any one who, by selling liquors in violation of law, causes the intoxication of such person. The instruction given the jury, and the argument for appellee, seem to go upon the theory that the statute bears no different construction than it would have if the words “by any intoxicated person” were eliminated therefrom, and that no right of action exists against the liquor seller for injuries inflicted by an intoxicated person whose condition has been produced by liquors unlawfully sold to him, unless it also be affirmatively shown that such injury is the immediate and proximate consequence of such intoxication. Indeed, they go much farther than this, and require the plaintiff to show, not only the fact of intoxication wrongfully produced by the acts of the defendant in selling liquor to her husband, and his suicide while in such intoxicated condition, but deny her the right of recovery until she has shown by a preponderance of the evidence he would not have taken his own life had not the defendants sold him the liquor which produced the intoxication. Moreover, this burden upon the plaintiff is increased--if that be possible--by requiring her to convince the jury that the death of the suicide was “caused in a manner, and by means which naturally resulted because of his intoxication so caused”; and that the “motives” which led him to turn his hand against his own life were “of such character as to be naturally aroused, produced or set in motion by means, and because of intoxication resulting from the use of such liquors.” It requires but little reflection to see that the rule of these instructions casts upon the plaintiff the burden of accomplishing a moral impossibility as an indispensable condition of a right on her part to recover damages, and leaves the statute which attempts to create that right shorn of effective force and vitality.

It is to be remembered that this statute creates a new right of action, and, to sustain such action, the person injured is not required to establish all the elements of an injury actionable at common law. It is enough if the facts alleged and proven include all the elements which the statute upon reasonable and fair construction may be said to prescribe....