Welch v. Jugenheimer
Decision Date | 21 April 1881 |
Citation | 8 N.W. 673,56 Iowa 11 |
Parties | WELCH v. JUGENHEIMER |
Court | Iowa Supreme Court |
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 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.
REVERSED.
Ed. W Stone and Wilson & Kellogg, for appellant.
McJunkin & Henderson, for appellee.
Against the objection of the defendant the plaintiff was permitted to testify, respecting her husband, as follows:
Answer. 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: Other testimony of like character was admitted. It was all inadmissible under the rule recognized by this Court in Calloway v. Laydon, 47 Iowa 456. There was no evidence whatever that the abusive language and conduct referred to tended in any way to impair the plaintiff's health.
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. This testimony was improperly admitted under the rule established by this court in Huggins v. Kavanaugh, 52 Iowa 368, 3 N.W. 409, and Weitz v. Ewen, 50 Iowa 34.
Question. "What did he say, if anything, about attending and helping you in the case?"
Answer.
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.
IV. 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 issues 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 law abiding than those without.
V. The court instructed the jury as follows:
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 drunk 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.
VI. The defendant assigned 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.
VII. 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 willfully 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 the 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 conceded. The doctrine that where a criminal act is charged in a civil action it must be established beyond a reasonable doubt before there can be a recovery is approved in 2 Greenleaf on Evidence, § 408, Taylor's Ev., 97, and Bishop on Marriage and Divorce, § 644. It it disapproved in 2 Wharton on Ev., § 1246, Cooley on Torts, 208, and Proffatt on Jury Trials, § 335.
The only case cited by Greenleaf in support of the rule is Thurtell v. Beaumont, 8 E.C.L. 531; 1 Bing. 339. This case was decided in 1823, and we are not aware that it has been followed by the courts of England. In relation thereto it has been said: Deper...
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