90 Iowa 122 | Iowa | 1894
I. Plaintiff sues for the sum of five thousand dollars damages, which she claims to have
II. Appellee flies a motion to strike the evidence, on the ground that it was never preserved by bill of exceptions or otherwise. In a stipulation filed in this court by the parties it is agreed “that the official reporter’s transcript of the original shorthand notes filed in the court below on June 4, 1892, certified by the clerk of the court below that it is such transcript, may be filed in this court as the only transcript required to be filed by appellee under its denial of appellants’ abstract, appellee merely intending to question the correctness of the record as to the evidence in the cause.” It is claimed that by this stipulation appellee is precluded from raising the question as to whether the evidence has been properly preserved. We do not think that is a proper construction of the stipulation. In its absence, the appellants would have been required to have the clerk of the district court make a transcript of the translation of the reporter’s notes, and to have filed it in this court. The only effect of the stipulation was to dispense with that, and in lieu thereof to permit the translation of the notes made by the reporter to be filed in this court, after being certified by the clerk as being correct. Leaving out of consideration, for the time being, the effect of the order of the court giving time to settle a bill of exceptions, and appellants’ failure to act thereunder, was the evidence properly preserved? We need
To this transcript there was attached an insufficient certificate of the judge. It was held that the certificate must be filed within the time fixed in the order of the court for settling a bill of exceptions. In Wadsworth v. Bank, 73 Iowa, 426, 35 N. W. Rep. 504, a law action, it appeared that within the proper, time the reporter certified to and filed his shorthand notes, but they were not certified by the judge. After the expiration of the time given to file a bill of exceptions, a
III. A motion is made to strike the amended assignment of errors because filed too late. This amendment, while filed after appellee’s argument, and without leave, appears to be in furtherance of justice. Stanley v. Barringer, 74 Iowa, 36, 36 N. W. Rep. 877. In this case it does not appear that the submission of the case in this court has been delayed, or that appellee has been prejudiced thereby. The motion will therefore be overruled. Hall v. Railway Co., 84 Iowa, 311, 51 N. W. Rep. 150.
IY. During the introduction of plaintiff’s evidence she filed, with leave of court, an amendment to her petition, alleging that by reason of the wrongful sales of liquor to her husband she had been damaged in her means of support, and in loss of the business and property with which her husband supported her and her family. Error is assigned on the overruling of a
Y. It is insisted that the instructions given by the court covering the time for which plaintiff could recover were contradictory. "We discover no ground for complaint in that respect. In one instruction the jury were told that, in any event, plaintiff could only recover for injuries occurring within two years next preceding the commencement of the suit; and, in another, that if they found that defendant sold no liquor to plaintiff’s husband prior to May 12, 1891, she could only recover for damages, if any, caused by defendant since that time and prior to the beginning of her action. The instructions were consistent.
YI. The instructions of the court are much criti-cised. We have examined them with care, and think they fairly present the law applicable to the case; and those refused, in so far as they were correct, were covered by those in fact given. We can not consider specifically all of the objections made to the instructions, but we deem them without merit.
YII. It is urged that the court erred in refusing an instruction touching the contributing of defendant to the injuries sustained by plaintiff. It appears from the evidence that several saloon keepers, other than defendant, sold plaintiff’s husband liquors. The instructions of the court upon this question were explicit and correct. Nor, was it incumbent on the court to define the meaning of the word “contributed.” It is safe to presume that the jury understood the common and accepted meaning of the word. To presume otherwise would be. equivalent to holding that their ignorance was so dense as to unfit them for jury service.
IX. The verdict, one thousand dollars, is said to be excessive. We do not think so. It is true that several saloon men had been selling this man liquor, but it clearly appears that he had been by drink reduced from a prosperous and efficient business man to a sot; that as a result his property was exhausted, his business virtually ruined, that thus the means of support for his wife had been squandered; and that, as a further result of his condition, he abused his wife. To all this it clearly appears defendant contributed. That he is now reaping the reward of his persistent wrongdoing is the fault of no one but himself. We discover no error. Aepirmed.