Huggins v. Kavanagh

• Decision Date: 02 December 1879
• Citation: 52 Iowa 368,3 N.W. 409
• Parties: SARENA HUGGINS, APPELLEE, v. MARCUS KAVANAGH, APPELLANT.
• Court: Iowa Supreme Court

52 Iowa 368

3 N.W. 409

SARENA HUGGINS, APPELLEE,

v.MARCUS KAVANAGH, APPELLANT.

Supreme Court of Iowa.

Filed December 2, 1879.

Appeal from Polk circuit court.

The petition contains several counts, and it is therein stated in substance that the defendant sold to the husband of the plaintiff, at various times between September, 1875, and March, 1877, intoxicating liquor, whereby he became intoxicated, and thereby the plaintiff and her family were injured in their means of support. There was a general denial of the allegations of the petition, trial by jury, verdict and judgment for plaintiff, and defendant appeals.B. A. Williams and Smith & Baylies, for appellant.

M. D. McHenry & Son and Barcroft & Given, for appellee.

SEEVERS, J.

1. Against the objection of the defendant the plaintiff was permitted to introduce evidence showing the number, ages and sex of her children. The object and purpose in the introduction of this evidence must have been to affect the question of damages. The thought, no doubt, was, that the extent of the recovery depended at least somewhat upon the number, age and sex of the children. We do not believe such is the law. The statute gives a right of action to every child injured in its means of support, as well as to the wife. Code, § 1557. As each has a right of action, neither can recover for damages sustained by the other. Nor can the plaintiff's damages be increased because she has a large number of children, or diminished because she has none; for her right to recover is based on the loss of means for her support, and not for the support of her children. The court below seems to have been of the same opinion, because the jury were instructed that the plaintiff could “not recover anything in this action on account of her children.” It is difficult, therefore, to see why the evidence was admitted. Possibly the ruling was based on Ward v. Thompson, June term, 1878; but the ground upon which it was held the admission of the evidence in that case was justifiable did not exist in this, and the rule established should not be extended, as we think the cited case went to the verge, and beyond which we are unwilling to go. Whether the instruction cured the error in the admission of the evidence we do not determine, as it is unnecessary to do so.

2. The court instructed the jury as follows: “If you find from the evidence that the plaintiff has been damaged by the intoxication of her husband within the time stated in the petition; that such intoxication was on some occasions caused or contributed to by defendant, and on other occasions his intoxication was not caused or contributed to by the defendant, then, if you can do so from the evidence,...