Cox v. Newkirk

• Decision Date: 21 October 1887
• Citation: 73 Iowa 42,34 N.W. 492
• Parties: COX v. NEWKIRK AND OTHERS.
• Court: Iowa Supreme Court

73 Iowa 42

34 N.W. 492

COX

v.NEWKIRK AND OTHERS.

Supreme Court of Iowa.

October 21, 1887.

Appeal from circuit court, Dallas county.

The plaintiff, Frances A. Cox, brings this action to recover for damages alleged to have been sustained by reason of the intoxication of her husband by liquor sold him by the defendants Newkirk and Kearms. She also asks that she may be allowed a lien upon the lot on which the liquor was sold. There was a trial to a jury, and verdict and judgment were rendered against Kearms for $2,416.66, and the same was made a lien upon the lot. The defendant Sarah J. Harlan, the owner of the lot, appeals.Kauffman & Guernsey, for appellants.

Cardell & Shortly, for appellee.

ADAMS, C. J.

The plaintiff's husband, Charles E. Cox, was a practicing attorney at Perry. Until the winter of 1883 and 1884 he supported his family comfortably. About that time, however, his intemperate habits increased, and he became a drunkard. In the spring of 1884, he became affected with delirium tremens, but afterwards partially reformed. The last of November, 1884, Kearms leased from Mrs. Harlan the premises in question for a grocery store, and occupied the same for about two months. During that time he sold intoxicating liquors as well as groceries, and sold liquors to some extent to the plaintiff's husband. Cox became worse, and lost his mind, and died a few months later. The lease of the premises to Kearms provided expressly that they should not be used for unlawful purposes, and Mrs. Harlan contends that she never at any time consented that they should be so used. Soon after the execution of the lease, her husband, acting as her agent, heard rumors that intoxicating liquor was being sold upon the premises. He began to make inquiries, and to exercise some vigilance in regard to the matter, employing the city marshal to watch against the sales of liquors upon the premises. Soon afterwards he served notice upon Kearms to quit, and in about two months from the commencement of the lease the premises were vacated.

1. The appellant complained of certain instructions given by the court, and among them of instruction 6, in which the jury was told, in substance, that if Kearms contributed to Cox's intoxication, habitual or otherwise, he would be liable for the damages sustained by the plaintiff in her means of support caused by such intoxication. It is contended by the appellant that this instruction is inconsistent with the ruling in Ennis v. Shiley, 47 Iowa, 552. There is a manifest difference between contributing to the habit of drinking, which eventually results in habitual drunkenness, and contributing directly to such drunkenness. The person who contributes...