Flint v. Gauer

66 Iowa 696 | Iowa | 1885

Beck, Ch. J.

I. The petition alleges that for two years prior to the commencement of the action defendant frequently sold intoxicating liquors to plaintiff’s husband, thereby causing his intoxication, or contributing thereto, and by reason of such intoxication he became an habitual drunkard. An amendment to the petition alleges that defendant’s saloon is situated upon a specified lot in the city of Burlington, and asks that, judgment for plaintiff be declared to be a special lien thereon. Defendant’s answer, which was filed after the petition was amended, denies generally all the allegations of the petition.

1. ihtoxicatjudgmentTor oYfuen’on116 premises: evidence.

2. fltsat>ing : tiony»iteretI' effect of. ' II. No evidence was introduced upon the trial tending to show that defendant owned the real estate against which the hen is sought. But after verdict an affidavit was filed, showing that an examination of the county records made by affiant revealed the fact . „ , , to be that the title of the property was m defendant, and upon this evidence the judgment was declared to be a special lien upon the real estate occupied for the saloon. It cannot be doubted that the affidavit was not competent as evidence in the case. This is not, as we understand counsel for plaintiff, disputed; but they insist that defendant’s ownership is admitted by the pleadings. The position is based upon the fact that the answer denies generally the allegations of the petition, but does not, however, specially mention and deny the averments of the amendment. The position cannot be supported. The original and amended petition together constituted the petition setting out plaintiff’s cause of action. They are to be considered as one pleading. The answer being filed after the amendment, it is to be regarded as referring to and denying all the allegations of the petition as it stands after amendment. This point of the case demands no further consideration.

„ wrong?ni°saie wrong-doers: damages. III. The district court, in the third instruction, directed the jury that for sales of liquor made by defendant to plaintiff’s husband, which produced or contributed to ^is habitual intoxication, the defendant would be liable for all damages sustained therefrom by plaintiff, as well as for exemplary damages. This instruction is erroneous, being in conflict with prior rulings of this court, holding that whoever contributes to the formation of habits of intoxication is liable only for the damages caused by his own act. See Richmond v. Shickler, 57 Iowa, 486; Ennis v. Shiley, 47 Id., 552; Engleken v. Weller, Id., 558.

Other questions argued by counsel need not be considered. For errors pointed out the judgment of the district court is

Reversed.