Knott v. Peterson

• Decision Date: 26 October 1904
• Citation: 101 N.W. 173,125 Iowa 404
• Parties: MARY KNOTT, Appellee, v. JOHN PETERSON, H. J. SCHNEEDE, and THE UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant
• Court: Iowa Supreme Court

101 N.W. 173

125 Iowa 404

MARY KNOTT, Appellee, v. JOHN PETERSON, H. J. SCHNEEDE, and THE UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 26, 1904

Appeal from Lyon District Court.--HON. WM. HUTCHINSON, Judge.

ACTION at law to recover damages for the death of plaintiff's husband, due to his intoxication resulting from the unlawful sale of liquors to him by the defendant Peterson. Defendant Schneede is made a party because of his ownership of the property in which the liquor was sold, but the case was dismissed as to him before submission to the jury. The United States Fidelity & Guaranty Company was made a party by reason of its having executed a bond as surety for Peterson conditioned that it should pay all damages resulting from the unlawful sale of liquors by him at the place named in the petition. Peterson was not served with notice, and did not appear. Schneede appeared and answered, but the case was dismissed as to him. The Fidelity & Guaranty Company appeared, pleaded Peterson's full compliance with the "mulct law," and denied any sales by him to plaintiff's husband. It also pleaded that, as Peterson was not made a party, no judgment could be rendered against it on the bond. These were the issues on which the case was tried resulting in a verdict and judgment for plaintiff, and the defendant the United States Fidelity & Guaranty Company appeals.

Reversed.

E. C Roach, for appellant.

No appearance for appellee.

OPINION

DEEMER, C. J.

A number of points are made in appellant's argument, but in view of the final disposition of the case, we shall not consider all of them.

I. As the bond was conditioned to pay all damages resulting from the sale of liquors by Peterson, and not to pay any judgment which might be rendered against him, and Peterson and his surety were jointly and severally liable thereunder, there was no necessity for making Peterson a party, nor for a judgment against him as a condition precedent to a right of action against the Fidelity and Guarantee Company. This is fundamental doctrine. Code, section 3465. Section 2422 of the Code, imposing a statutory liability for judgments rendered against the principal, is not controlling; for it is the terms of the bond which are to govern in this case.

II. Plaintiff produced a life insurance agent, who, over defendant's objections, testified that he was acquainted with the Standard Life Tables, and that they showed the expectancy of life in one seventy years as 7.54 years. He further said that all he knew about it was what the life tables showed, and that these were in print. It is now claimed that these tables were themselves the best evidence, and that in such an action as this neither life tables nor oral evidence as to expectancy of life are admissible. It is true that in one case we questioned the admissibility of such evidence in such actions as this. Rafferty v. Buckman, 46 Iowa 195. But it is now generally held that life tables are admissible to show expectancy of life when the injury is permanent in character or death results from the wrong of defendant. Trott v. R. R., 115 Iowa 80, 86 N.W. 33; Allen v. R. R., 106 Iowa 602, 76 N.W. 848; Pearl v. R. R., 115 Iowa 535, 88 N.W. 1078. This is the rule in other States in civil damage cases. Roose v. Perkins, 9 Neb. 304 (2 N.W. 715, 31 Am. Rep. 409); Davis v. Standish, 26 Hun 608. However, the admissibility of the witness' testimony was doubtful, to say the least. He had no personal knowledge, and merely stated the contents of written tables. Some courts take judicial notice of what the life tables show, and it may be that we should do so in this case, and hold the error in receiving the witness' testimony to be without prejudice; but, without making any definite pronouncement upon the point at this time, it is sufficient to say that upon a retrial it would be safer to introduce the life tables themselves, rather than to permit witnesses to state their contents. Erb v. Popritz, 59 Kan. 264 (52 P. 871, 68 Am. St. Rep. 362).

III. Several witnesses were permitted, over defendant's objection, to detail conversations had with Peterson the day after plaintiff's husband's death. These conversations were no part of the res gestae, but related to the husband's condition the night before his death, what he (Peterson) did with him, and to the fact that he (Peterson) had given Knott, the husband 50 cents and two bottles of beer the night before his death, and had taken him part way home. Had they been part of the res gestae, they would undoubtedly have been admissible as against the surety. But evidently they were not. They related wholly to a past transaction, and were no part of the main event -- the death of Knott. Declarations of a principal, in order to be admissible against his surety, must ordinarily be a part of the res gestae. Hatch v. Elkins, 65 N.Y. 489; Lee v. Brown, 21 Kan. 458; Chelmsford v. Demarest, 73 Mass. 1; Nickols v. Jones, 166 Pa. 599 (31 A. 329). The bond was not to be responsible for any declaration or admissions of the principal, but for his conduct only. Hence it is only his conduct in carrying on the business, or declarations accompanying his acts while so engaged, that are admissible in evidence against his surety. Bank v. Smith, 94 Mass. 243 (90 Am. Dec. 144); Trousdale v. Philips, 2 Swan 384; Stetson v. Bank, 2 Ohio St. 167; Lewis v. Lee Co., 73 Ala. 148; Cheltenham Co. v. Cook, 44 Mo. 29. There are some cases which seem to hold that, when the suit is against the principal and surety jointly, an admission or declaration of the principal which is competent against him is also competent against the surety. Amherst Bank v. Root, 43 Mass. 522; Davis v. Kingsley, 13 Conn. 285; Singer Mfg. Co. v. Reynolds, 168 Mass. 588 (47 N.E. 438, 60 Am. St. Rep. 417). But these cases are exceptional in character, and are not recognized in all jurisdictions. If the suit were against Peterson, so that a judgment might be rendered against him, we should be inclined to hold that testimony as to such admissions or declarations as were received in this case would have been competent, for, under section 2422 of the Code, to which we have referred, the defendant surety company would have been liable for any judgment which might have been rendered against Peterson. But, where the action is against the surety alone, and it is to be held, if held at all, under the terms of its bond, we do not think that declarations of the principal as to past transactions not forming part of the res gestae are admissible in evidence. See, as sustaining our conclusions, Elliott on Evidence, vol. 1, section 253; 2 Brandt, Surety and Guaranty, sections 624, 627. For the error in receiving...