45 Iowa 116 | Iowa | 1876
1. As the appeal of the defendant, McGavern, presents for our consideration distinct questions, which have no connection with the question of the liability of the defendant, McBride, we will, in the first place, consider such questions as affect McGavern alone; and, in the second place, such as affect McBride alone, or both defendants together.
The jury found specially that S. J. McBride did sell or give away intoxicating liquor in the drug store occupied by him in Missouri Valley, Harrison county, Iowa, with the knowledge and consent of George H. McGavern. The defendants moved in arrest of judgment upon the ground that the special finding of the jury does not show that defendant, McGavern, had any knowledge of and gave consent to the sales of intoxicating liquors testified .to by the witnesses on the stand, within
The special finding in this ease does not show that Mc-Gavern had such knowledge, or that he gave such assent. It did not authorize the declaring of the judgment a lien upon Ms premises.
2. The court instructed the jury as follows: “18th. If you find that the defendant, Geo. H. McGavern, bought intoxicating liquor during the year 1875 of the defendant, S. J. McBride, or if he sent other persons .there for that purpose, this would be such knowledge and consent on his part as would bind the building owned by him, and authorize you to find against Mm.” This instruction is erroneous for the reasons already considered. Even if McGavern had knowledge that McBride was selling intoxicating liquors, his property would not be liable for a judgment recovered, unless he knew McBride was selling to minors or persons in the habit of becoming intoxicated.
Several errors have been assigned by McGavern relative to the admission of testimony, which need not be considered, as the cause must, as to him, be reversed for the errors above discussed, and the same questions will not likely arise upon the re-trial.
II. We now consider the assignments of error which affect
4_._. instruction. 3. The defendants assign as error the giving of the following instruction: “ The plaintiff, E. J. Cobleigh, prosecuted this action for the use and benefit of the school fund, and has no more interest in the result of this prosecution than any other citizen of this county, as he cannot receive anything personally from any judgment that may be rendered.” This instruction is not erroneous. Appellants claim that it is an assumption of a fact peculiarly within the province of the jury. But that the amount of the recovery goes to the school fund and not to plaintiff is a question of law.'
As to the defendant McGavern the judgment is
Reversed.