Peterson v. Brackey
| Decision Date | 11 March 1909 |
| Citation | 119 N.W. 967,143 Iowa 75 |
| Parties | JOHN PETERSON, Guardian of the Minor Heirs of TOLLEF PETERSON, Deceased, v. ALBERT BRACKEY and TURINE BRACKEY, Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, JUNE 5, 1909.
Appeal from Winnebago District Court.--HON. C. H. KELLY, Judge.
ACTION in behalf of the minor heirs of Tollef Peterson, deceased, to recover damages for injury as to their means of support and exemplary damages, on account of the giving to deceased, who was a person in the habit of becoming intoxicated, of intoxicating liquors, causing him to become intoxicated and resulting in his death. There was a verdict for plaintiff and from judgment thereon the defendants appeal.
Affirmed.
L. A Jensen, for appellants.
Gordon & Belsheim, for appellee.
The defendants are husband and wife, the latter being the sister of the wife of deceased. The two families resided on farms in the same general neighborhood, and on Sunday, the 14th day of July, 1907, defendants drove to the home of the deceased on a friendly visit, and also with the purpose of discussing with deceased a proposed trade of hogs. Defendants had with them in their buggy a bottle containing a mixture of alcohol and water for use as a beverage, from which, at the solicitation of defendants, the deceased took a drink. About sundown, at the invitation of defendants, the deceased and his wife, in a separate conveyance with three of their small children, went with defendants to their home for the purpose of seeing the hogs offered to be traded. On arriving there the defendant Albert Brackey directed his wife to mix up some more liquor, which she did, filling a teacup, as she testified, with one part alcohol and two parts water, from which deceased and his wife and Albert Brackey drank, using a little glass which could be dipped into the teacup. Of this mixture the deceased drank two glasses. About this time Turine Brackey, at her husband's suggestion, brought up from the cellar a quart bottle of beer, of which deceased drank about one-third. Albert Brackey and the deceased then went to the barn, and on returning, another teacup full of the alcohol mixture was fixed up, and the deceased again drank two glasses. Then the parties went to look at the hogs, and, returning, another cupful of mixed alcohol was prepared, this time as Turine Brackey testified with one-third alcohol, one-third water, and one-third coffee. The wife of deceased, who had been drinking of the mixture with her husband, felt "dizzy and funny" from what she drank, and something was said about the drink being too strong. Supper was served by defendants about ten o'clock. The wife of deceased became sick and lay down on a bed, and the deceased lay on the floor near by. About one o'clock the defendants went to bed in another part of the house, leaving deceased on the floor. The next morning the wife of deceased found him dead beside the bed, where he had been the night before. Two physicians, one of them the coroner, testified that in their opinion he had died as the result of drinking too much liquor. In addition to this evidence, as to which there is no particular controversy, there was proof in behalf of plaintiff of declarations of defendant Turine Brackey that her husband had, after the drinking by deceased described above, given him a drink of undiluted alcohol. This declaration was made after Turine Brackey had ceased to live with her husband. There is some conflict in the evidence as to the amount of alcohol consumed by the parties on this evening, Turine Brackey testifying that a two-gallon jug full of alcohol had been brought home by her husband after the 4th of July, only a small portion of which had been used prior to the evening in question, but she testified that there was only about a quart of alcohol left in the jug at that time, and that during the evening the jug was emptied.
I. In behalf of defendant Albert Brackey it is contended that a motion to direct a verdict in his favor should have been sustained, for the reason that, aside from the evidence relating to declarations of Turine Brackey as to his administering to deceased a drink of pure alcohol, which declarations were not admissible as against him, there was not sufficient evidence to justify a finding by the jury that sufficient alcohol had been given deceased to cause his death. A reading of the entire record satisfies us that this contention is without merit. The whole question was left to the jury, with instructions not complained of in this respect, and the conclusion of the jury that there was sufficient evidence to support a finding for the plaintiff against Albert Brackey can not properly be interfered with. There was expert evidence tending to show that not to exceed one-third of a quart of pure alcohol taken within twenty-four hours might cause death, and there is enough in the record, without the declarations of Turine Brackey, to support a finding by the jury that deceased was given that amount.
II. By motion in arrest of judgment an effort was made by defendants to raise the question whether Turine Brackey was properly joined as defendant with her husband, the claim being that she was presumed to act under the coercion of her husband. The overruling of this motion is assigned as error. It is sufficient to say that no such question was raised during the trial. No special pleading was necessary to raise the question, but by request for instructions the defendant Turine Brackey could have had the question submitted to the jury, if proper for its consideration, and, by motion to direct a verdict in her favor for want of evidence to charge her with liability, the court could have been called upon to rule upon the question as a matter of law. But in no manner in pleadings, offers of or objections to evidence, motion to direct a verdict, or request for instructions, did counsel advise the court that Turine Brackey's joint liability for any tort found to have been committed was...
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