Welch v. Jugenheimer

• Decision Date: 21 April 1881
• Citation: 56 Iowa 11,8 N.W. 673
• Parties: WELCH v. JUGENHEIMER.
• Court: Iowa Supreme Court

56 Iowa 11

8 N.W. 673

WELCH

v.JUGENHEIMER.

Supreme Court of Iowa.

Filed April 21, 1881.

Appeal from Washington circuit court.

This action was instituted against William Jugenheimer and William Jugenheimer Jr., to recover damages for the selling of beer to her husband, Clay Welch, a person, as is alleged, in the habit of becoming intoxicated, and intoxicated at the time of the sales. Pending the trial the plaintiff dismissed her cause of action as to William Jugenheimer Jr. The trial resulted in a verdict and judgment in favor of the plaintiff against the other defendant for $500 and costs. The defendant appeals.Ed. W. Stone and Wilson & Kellogg, for appellant.

McJunkin & Henderson, for appellee.

SEEVERS, J.

1. Against the objection of the defendant the plaintiff was permitted to testify respecting her husband, as follows: “ Question. State how did he treat the family when in this condition?--what maltreatment you received? Answer. Not very good. He would come home, and if everything, both his work and mine, was not done all up, he would curse and abuse the family. I was compelled to get up out of bed at a late hour and do work of any kind while he was in that condition. Sometimes, if I did not have wood plenty, he would growl about it, and curse and swear; that he had left me there to do the work, and wanted to know why I did not do it.”

Another witness was permitted to testify as follows: “ Question. Now state if at any time when in this condition you saw him abuse his family, Answer. I could not hardly say. I can only say he was cross and ugly.” Another witness was allowed to testify as follows: “When he is intoxicated he is pretty cross to his family, and when he ain't he is as good as the common run of men to his family. When he is intoxicated he will cuss his family and jaw his wife. Once, down at his mother's, before she had the conversation with Jugenheimer, the defendant, I was present. They wanted to go home, and he cursed her, and told her to get her shawl or he would go off and leave her.” Other testimony of like character was admitted. It was all inadmissible under the rule recognized by this court in Calloway v. Laydon, 47 Iowa, 466. There was no evidence whatever that the abusive language and conduct referred to tended in any way to impair plaintiff's health.

2. The plaintiff was also permitted, against the defendant's objection, to testify as follows: “ Question. Now, you may state to the jury how many members in the family you have, and their ages; that is, the ages of your children. Answer. One. She will soon be three years old. She will be three years old in February.” This testimony was improperly admitted, under the rule established by this court in Huggins v. Kavanagh, 52 Iowa, 368, and Weitz v. Ewen, 50 Iowa, 34.

3. Against the objection of the defendant the plaintiff was also allowed to testify as follows with reference to her husband: “ Question. What did he say, if anything, about attending and helping you in the case? Answer. Why, he said he would never do that; he demanded his fees, and I did not have them for him, and he told me that I might take the papers back,--that he would not take them; he would not take the copy. He said if he was fetched up he would go against me; he said he never would have anything to do with it, and if he was fetched up he would go against me. Yes, I worked for some of the provisions, dresses, and so on. I do not remember that he furnished anything, but he might.” This testimony is not relevant to any issue in the case. Its only effect would be to create an undue sympathy for the plaintiff on the part of the jury, and thus unfit them, in a measure, for a calm, cool, and dispassioned consideration of the case. The evidence should not have been admitted.

4. The evidence shows that the defendant's brewery is situated outside the corporate limits of the city of Washington. The plaintiff was permitted to introduce an ordinance of the city of Washington prohibiting the sale of beer within the corporate limits, and also to prove that no license had been issued for the sale of beer in the city. It is insisted by the appellee that this testimony was admitted to rebut the claim of the defendant that the plaintiff's husband procured the beer causing the injuries complained of in the city of Washington. The evidence, we think, was not competent for this purpose. It could have no effect upon the issue in this case, except upon the presumption that persons within the corporate limits would not violate the ordinance, and that, therefore, the law must have been violated by the defendant. There can be no presumption that persons within the corporate limits are more lawabiding than those without.

5. The court instructed the jury as follows: “If you find from the evidence that defendant did sell beer to plaintiff's husband within the two years prior to August 14, 1879, and you further find from the evidence that at the time of such sale or sales, as the case may be, the plaintiff's husband was either intoxicated, or was then a person in the habit of becoming intoxicated, and the plaintiff has shown that she has been damaged thereby in her person, property, or means of support, then she may recover such actual damages thus sustained as shown by the evidence, and in addition thereto you may, if you think proper, allow vindictive or exemplary damages.” This instruction is erroneous. Section 1557 of the Code gives to the wife who shall be injured in person, property, or means of support by her intoxicated husband, or in consequence of his habitual intoxication, a right of action against any person who shall, by selling intoxicating liquors to her husband, cause his intoxication. The mere selling of intoxicating liquors to a person intoxicated, or in the habit of becoming intoxicated, does not of itself confer the right of action. In order that a right of action may exist, the liquor sold must cause or contribute to intoxication, and the wife must sustain some injury by the intoxication. It is apparent that if the plaintiff's husband bought beer from the defendant the plaintiff may have been damaged to the extent of the price paid and the value of the time spent at the defendant's brewery, although the beer so bought may not have contributed to his intoxication, and may not have been drank by him. This instruction would allow a recovery under just such a state of facts. Under the instruction it is not made essential to a recovery that the beer sold should have caused or contributed to intoxication.

6. The defendant assigns as error the giving of the following instruction: “The statute also provides that courts and juries shall construe the law hereinbefore recited so as to cover the act of giving, as well as selling, by persons not authorized.” It is claimed that section 1554 of the Code, containing this provision, is not applicable to the act of giving intoxicating liquors to a person intoxicated, or in the habit of becoming intoxicated. This question was determined adversely to the position of appellant in Church v. Higham, 44 Iowa, 482.

7. The defendant asked the court to instruct the jury that it is a violation of the criminal statutes for a person to sell, or give to another, while intoxicated, any intoxicating liquors, and that the jury must be satisfied, beyond a reasonable doubt, that the defendant so did before they would be warranted in finding against him. This instruction was refused, and the jury were instructed that a preponderance of the evidence was sufficient to enable the plaintiff to recover. This action of the court is assigned as error. Barton v. Thompson, 46 Iowa, 30, was a civil action to recover damages for wilfully and maliciously setting fire to certain stacks of wheat, and it was held that the plaintiff must satisfy the jury, beyond a reasonable doubt, that the allegations in the petition were true before he could recover. The correctness of this decision has been questioned by counsel in several cases which have been before us, and authorities cited which were not before us when that case was determined. It is proper, also, to say that we were largely influenced in making the ruling in Barton v. Thompson because of the rule which this court at an early day had adopted in actions of slander, it being regarded as doubtful whether a distinction could be drawn between such actions and any other civil action in which a crime is charged. A more careful examination of the books satisfies us that, whatever may be the rule in actions of slander or libel, where a crime is charged and a justification is pleaded, the rule in Barton v. Thompson is in conflict with the weight of authority, and cannot be sustained on principle, and is therefore overruled. That the authorities are conflicting must be...