League v. Ehmke

• Decision Date: 18 May 1903
• Citation: 94 N.W. 938,120 Iowa 464
• Parties: ADEL LEAGUE v. CLAUS EHMKE, Appellant
• Court: Iowa Supreme Court

94 N.W. 938

120 Iowa 464

ADEL LEAGUE v. CLAUS EHMKE, Appellant

Supreme Court of Iowa, Des Moines

May 18, 1903

Appeal from Pottawattamie District Court.--HON. W. R. GREEN, Judge.

ACTION by a married woman to recover damages, both actual and exemplary, on account of injuries received by reason of the sale of intoxicating liquors by defendant to her husband. Verdict for plaintiff; and from judgment thereon, defendant appeals.

Affirmed.

A. L Preston for appellant.

Willard & Willard and T. S. Lewis for appellee.

OPINION

MCCLAIN, J.

In presenting the issues to the jury the trial court did not instruct with reference to a defense interposed in the answer that defendant, at the time of the alleged sales to plaintiff's husband, was carrying on the business of selling liquor under the provisions of the mulct law, and the failure to present this defense to the jury is assigned as error. The civil liability provisions of the intoxicating liquor law were first enacted in 1862 as chapter 47, page 50 of the Acts of the Ninth General Assembly, and remained unchanged until the adoption of the present Code in 1897, being section 1557 of the Code of 1873. The commissioners who reported the present Code to the legislature made no modification in the section, save by way of the elimination of tautology, except to insert the provision as to giving, so that, as the section was reported, one who should give liquor to another, as well as one who should sell, would be liable in civil damages for injuries resulting therefrom. In adopting the Code, however, the legislature inserted the words "contrary to the provisions of this chapter," in the section as reported by the Code Commission, and as now found in section 2418 of the present Code. It is to be borne in mind that the so-called "mulct law," now embodied in sections 2432-2455 of the Code, was first enacted in 1894, as chapter 62, page 63, of the Acts of the Twenty Fifth General Assembly. In the case of Carrier v. Bernstein, 104 Iowa 572, 73 N.W. 1076, it was held that compliance with the mulct law on the part of the seller of intoxicating liquor did not relieve him from civil liability for injuries to a wife in her means of support by reason of sale of liquors to her husband; the reason assigned being that if defendant, as alleged in the petition in that case, sold intoxicating liquor to plaintiff's husband, "causing him to become intoxicated, idle, profligate, and neglectful of his business, and so as to impair him in body and mind, and to render him unable to obtain remunerative employment, to the damage of plaintiff," he violated the conditions of the mulct law, and the fact that he was conducting his business in general under the mulct law would not constitute a defense. But this decision was made prior to the adoption of the present Code, and the change in the language of the civil liability section, to which we have already referred; and counsel for defendant now contends that the insertion by the legislature in the civil liability section of the words already quoted obviated the effect of this decision, so that one who complies with the provisions of the mulct law, as it is now in force, and does not sell to a minor, drunkard, or intoxicated person, or knowingly to any person who has taken any of the so-called "cures" for drunkenness (see Code, section 2448, paragraph 10), is not civilly liable for any injury resulting to the wife of a person to whom such sales are made. But the difficulty with this argument, as applied to the present case, is that it does not appear that defendant was complying with the mulct law at the time of the sales made to plaintiff's husband. The seller who relies on compliance with the mulct law as a defense against any liability under the general provisions of the statute which prohibit the selling of liquors for use as a beverage has the burden of alleging and proving full and complete compliance with the conditions imposed by the mulct law. Ritchie v. Zalesky, 98 Iowa 589; State v. Van Vliet, 92 Iowa 476, 61 N.W. 241; State v. Donahue, 120 Iowa 154, 94 N.W. 503.

In the present case defendant pleaded compliance with the mulct law as an affirmative defense, but by operation of law such allegations were denied without the filing of a reply by the plaintiff (Code, sections 3576, 3622, 3648), and therefore the burden of proving compliance with the mulct law was upon the defendant. There was no evidence introduced by defendant of such compliance, except the general statement by him in his testimony as a witness that he was operating under the mulct law. But even if he was operating under the mulct law, the sale of liquor by him to plaintiff's husband would be unlawful, if not made in such place and in such manner and to such person as the mulct law authorizes. The defendant did not attempt to testify as a witness, nor is there any testimony to show that the provisions of the mulct law as to the place and manner of sale, and the person to whom sales were made, were such as were authorized. The court did not err, therefore, in failing to submit to the jury the question whether the sales of liquor to plaintiff's husband were lawful.

Complaint is made of an instruction in which the jury were told that if defendant caused or contributed to the habitual intoxication of plaintiff's husband, and that by reason thereof the plaintiff was injured in her means of support, defendant would be liable for actual and exemplary damages thereby occasioned, while if the evidence merely showed that defendant contributed to the habit of drinking on the part of plaintiff's husband without intoxication, but leading to the habit of drinking, which resulted in the intoxication then the defendant would not be liable. It is urged that to cause or contribute to an habitual condition of intoxication does not give rise to any liability, but we think this view is erroneous. The section of the Code already referred to as furnishing the basis for this action expressly provides that a wife who shall be injured in her means of support in consequence of the intoxication of her husband, habitual or otherwise, caused by the defendant, shall have a...