Carrier v. Bernstein

• Citation: 104 Iowa 572,73 N.W. 1076
• Parties: CARRIER v. BERNSTEIN ET AL.
• Decision Date: 28 January 1898
• Court: Iowa Supreme Court

104 Iowa 572

73 N.W. 1076

CARRIER

v.BERNSTEIN ET AL.

Supreme Court of Iowa.

Jan. 28, 1898.

Appeal from district court, Marshall county; S. M. Weaver, Judge.

The plaintiff, a citizen and resident of Marshall county, Iowa, and wife of John Carrier, filed her petition in two counts to recover from the defendants for alleged sales of intoxicating liquors made by them in said county, in a place described, to her said husband. In the first count she asks to recover, under section 1557 of the Code of 1873, for damages to her person, property, and means of support caused by illegal sales of intoxicating liquors to her husband by the defendants, whereby he was rendered drunken, intoxicated, idle, profligate, and wholly neglected his business, and was broken down in body and mind. In the second count she asks to recover for herself and the school fund of the state, under section 1539 of said Code, for alleged sales of intoxicating liquors by the defendants to said John Carrier when intoxicated and in the habit of becoming intoxicated. Defendants moved to strike said first count, or that the plaintiff be required to elect upon which count she would proceed, upon the grounds that there was a misjoinder of parties and of causes of action. This motion being overruled, the defendants moved for more specific statement as to the time and place of the sales, by which defendant sales were made, and the kind and quantity of liquors sold. This motion was overruled, and the defendants answered, admitting that they were conducting a wholesale and retail liquor store at the place described, in said county, and denying every other allegation in the petition. They further answered that their said place and business were conducted in accordance with chapter 62, Laws 25th Gen. Assem., and that, therefore, the plaintiff has no right of action against them. A verdict was returned upon the first count in favor of the plaintiff for $500, and judgment rendered thereon against the defendants “in favor of plaintiff, in her own right, in the sum of $500, and for costs of action.” A verdict was also rendered as follows: “We, the jury, find for the plaintiff, for the use of the school fund, upon the second count of the petition, in the sum of four hundred dollars ($400).” Judgment was rendered thereon as follows: “Judgment is also entered against all said defendants in the further sum of $400, for the use of the school fund.” To these judgments the defendants excepted, and from them they appealed. Reversed.Anthony C. Daly and Theodore F. Bradford, for appellants.

Meeker & Meeker, for appellee.

GIVEN, J.

Appellants' first contention is that the court erred in overruling defendants' motion to strike the first count, or to require the plaintiff to elect upon which count she would proceed, insisting that there is a misjoinder of parties and of causes of action. Section 2630 of the Code of 1873 provides as follows: “Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, provided that they be by the same party, and against the same party in the same rights, and if suit on all may be brought and tried in that county, may be joined in the same petition.” Said section 1557, upon which the first count is based, gives to every wife 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, the right of action in her own name against any person who shall, by selling intoxicating liquors, cause the intoxication of such person, for all damages actually sustained, as well as exemplary damages, to be recovered by civil action in any court having jurisdiction thereof. It will be observed that the wife thus injured is the only proper person plaintiff in such an action, and that the right of recovery is to her, and to her alone, and for her own exclusive benefit. Section 1539, upon which the second count is based, declares it unlawful for any person to sell intoxicating liquors to any intoxicated person, or to any person who is in the habit of becoming intoxicated. It provides that any person violating this provision shall forfeit and pay to the school fund the sum of $100 for each offense, to be collected by action against him by any citizen in the county. “One-half of the amount so recovered shall go to the informer, and the other half shall go to the school fund of the county.” While it may be said that these causes of action may be prosecuted by the same kind of proceedings, we think that they are not by the same party as plaintiff, nor in the same right. In the first count the plaintiff sues in her own name, and no other person could properly be joined with her as plaintiff. The second count is not to recover an amount due to her, but a forfeiture payable to the school fund. The language of section 1539 is: “Any person violating the provisions of this section shall forfeit and pay to the school fund the sum of $100 for each offense.” In the second count plaintiff does not sue as wife, but as “citizen in the county,” and as informer. Such an action might be properly entitled in the name of the citizen, as informer, for the use of the school fund of the county, naming it, as plaintiff. If it may be said that, because of plaintiff's right as citizen to bring the action as in the second count, the two actions are by the same party, surely it cannot be said that they are in the same right. The first is in the right as wife for damages to her person, property, and means of support, and is a right existing solely and exclusively in favor of the plaintiff, for injuries actually suffered by her. The second is in the right of the county, not to damages, but to the forfeiture to its school fund. The citizen prosecuting such an action as informer has no personal right of recovery. He cannot recover anything in his own right, and it is only when recovery is had in favor of the...