Wing v. Benham

• Decision Date: 23 October 1888
• Citation: 39 N.W. 921,76 Iowa 17
• Parties: WING v. BENHAM ET AL.
• Court: Iowa Supreme Court

76 Iowa 17

39 N.W. 921

WING

v.BENHAM ET AL.

Supreme Court of Iowa.

October 23, 1888.

Appeal from district court, Linn county; JAMES D. GIFFIN, Judge.

Plaintiff brought an action for the recovery of damages for the injury to her means of support, caused by the unlawful sale of intoxicating liquors to her husband by the defendant Benham. The property in which the business was carried on was owned by defendant Owen, and he was made a party to the end that any judgment which should be recovered against Benham might be established as a lien on the property. Plaintiff recovered against Benham, but the jury found specially that Owen did not consent to the unlawful sales of liquor to her husband, and the court entered judgment in his favor on that finding. Plaintiff appealed.Gray & Parsons and Charles W. Kessler, for appellant.

Blake & Nermel and Thompson & Laming, for appellee.

REED, J., ( after stating the facts as above.)

Appellee filed a motion to strike the evidence from the abstract, on the ground that it had not been properly preserved or made part of the record. But as the material questions in the case can be determined without considering the evidence, we do not decide the motion. The district court gave the following instructions, on which error is assigned: “(12) If, after a careful consideration of the evidence under the foregoing instructions, you find the plaintiff is entitled to recover against defendant Benham you will next inquire and ascertain from the evidence whether the defendant Owen had any knowledge and gave any consent to the sale or furnishing of any intoxicating liquors to the said C. M. Wing by the said Benham or his clerks. Knowledge thereof and assent thereto by the said George B. Owen, agent of defendant David Owen, will be sufficient to charge said premises with a lien for any sum you may find against defendant Benham; and if you find from the evidence, besides other facts and circumstances, that intoxicating liquors were sold by said Benham or his clerks in said building, contrary to law; that the traffic had been continued for a considerable length of time; that said saloon was in a public place, in a large building, of which said George B. Owen had charge and looked after during the time plaintiff's husband resorted there to procure intoxicating liquors, if he did; that the said George B. Owen passed the said saloon frequently when at home; that he some times entered said saloon, and purchased or obtained intoxicating liquors therein; that the said room was fitted up for saloon purposes; that the said Benham procured and had posted up in said saloon a government license to sell spirituous liquors; that the purposes for which said room in said building was used was generally known,--you will carefully weigh and consider the same, and from these circumstances, if established, and...