Lee v. Hederman

• Decision Date: 11 December 1912
• Citation: 138 N.W. 893,158 Iowa 719
• Parties: LEE v. HEDERMAN ET AL.
• Court: Iowa Supreme Court

158 Iowa 719

138 N.W. 893

LEE

v.HEDERMAN ET AL.

Supreme Court of Iowa.

Dec. 11, 1912.

Appeal from District Court, Crawford County; Z. A. Church, Judge.

Action for damages resulted in a judgment against defendant, from which he appeals. Reversed.Connor & Lally, of Denison, for appellant.

Shaw, Sims & Kuehnle, of Denison, for appellee.

LADD, J.

The plaintiff is a minor son of Arnold Lee, deceased, and sued by his mother,as next friend, for loss in his means of support. The defendant operated a saloon at Arion, and was alleged in the first count of the petition to have sold or given intoxicating liquors to said Arnold Lee on August 3, 1909, who drank the same, and that said liquors so sold or given caused or contributed to his intoxication, and that while on the way from Arion to Dow City, when so intoxicated, he fell or was thrown from the wagon in which he was riding by reason of the team becoming frightened by the shouting and hallooing of said Lee and one Shaffer, and was thereby killed. In the second count of the petition it is alleged that defendant sold or gave to one Shaffer a pony keg of beer and put a spigot in it; that this was put in Shaffer's wagon; that Lee accompanied Shaffer from Arion to Dow City; and that Shaffer became intoxicated on the way from drinking beer from said keg, and when near Arion, and while so intoxicated, by shouting and hallooing, frightened his team, caused it to lunge forward and start to run away, and thereby Lee was thrown from the wagon and killed. The defense interposed was a general denial. Appellant has assigned only 68 errors, 37 of which are argued. Such as seem of sufficient gravity to require it will be considered.

[1] 1. The mother of deceased, after testifying that he was 29 years old past, and that she had seen him in the afternoon prior to his death, was asked: “Was he a strong, robust, or very delicate man?” And, over objection as immaterial, answered: “Yes, sir; he was a strong, healthy man, and [over same objection] he was very pleasant around the house.” The defendant moved to strike out the answer because immaterial. The motion was overruled. Defendants argue that the last clause of the answer should have been excluded, but, as the motion was to strike the entire answer, that point was not saved. Defendant's condition was material as bearing on the extent of plaintiff's loss of support, and, as part was material, the motion to strike out the entire answer was rightly overruled.

[2] 2. Another witness, George Bell, after testifying that he had resided in Union township, Crawford county, for 40 years, and had seen Lee about an hour before he left Arion, and also when he was about half way between Arion and Dow City, and did not regard him as intoxicated, was asked: “What do you know about Mr. Lee being a bootlegger?” An objection as immaterial and incompetent was sustained. Whether what the witness knew would have had any bearing in ascertaining the kind of a man deceased was or his occupation the court had no means of knowing, and, in the absence of any preliminary showing, there was no error in the ruling.

3. Exception is taken to several of the instructions given and refusal of those requested. All of the latter in so far as correctly stating the law were embodied in or negatived by those given. Most of the latter were very short, and, of course, could not for this reason be very comprehensive, but we think the law fairly stated in the charge as a whole except in the instructions hereafter criticized.

[3] In the thirteenth instruction the jury was told that it was only necessary “to show that the accident occurred while the father was in fact intoxicated by the use of intoxicating liquors sold or given to him by defendant or another for him,” and that plaintiff was not required to show as a condition to his right of recovery on the first count that “the father would not have met with the accident resulting in his death had the defendant not sold or given him the liquor in question.” The exception thereto is based on an erroneous interpretation of the statute which provides, in substance, that every child who is injured in his means of support “by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person,” has a right of action against any person, who by selling or giving contrary to law shall cause intoxication of such person for all damages actually sustained as well as exemplary damages. It is enough that the injury was by an intoxicated person, regardless of whether it would have been committed by him if sober. In other words, if by an intoxicated person, it is not necessary to...