52 Iowa 368 | Iowa | 1879
The statute gives a right of action to every child injured in its means of support as well as to the wife. Code, § 1557. As each has a right of action neither can recover for the damages sustained by the other. Nor can the plaintiff’s damages be increased because she has a large number of children, or diminished because she has none; for her right to recover is based on the loss of means for her support and not for the support of her children.
The court below seems to have been of this opinion, because the jury were instructed that the plaintiff could “not recover anything in this action on account of her children.” It is difficult, therefore, to see why the evidence was admitted. Possibly the ruling was based on Ward v. Thompson, 48 Iowa, 588. But the ground upon which it was held the admission of the evidence in that case was justifiable did not exist in this, and the ride established should not be extended, as we thinlc the cited case went to the verge, and beyond which we are unwilling to go.
Whether the instruction cured the error in the admission of the evidence we do not determine, as it is unnecessary to do so.
It is not alleged in the petition that the damages are the result of a single sale or act of intoxication, but on the contrary it is stated there were a series of sales, covering a considerable period of time. Under such circumstances it has been held that a joint action will not lie against several wnong doers. La France v. Krayer, 42 Iowa, 143. From this it follows that a “settlement with one does not bar an action against another.” Jewett v. Wanshura, 43 Id., 574; and in Engleken v. Webber, 47 Id., 558, it was in substance held that the defendant was not liable for damages to which he did not contribute.
This seems to be the thought of the instruction: Unless the jury are unable to separate the damages to which the defendant contributed from those to which he did not, then he is liable for the whole, no matter how small the damages may be to which he did contribute, when compared with the whole amount the plaintiff is entitled to recove]-.
We do not believe this is the law. If it is, then a new rule, applicable to this class of cases alone, must be established. For this there is no warrant in the statute, and on principle or authority it cannot be maintained. The illustration in the opinion on i-ehearing in Engleken v. Webber, of the trespassing stock, fairly presents and illustrates the question under discussion. It may be difficult to ascertain the. exact amount óf damages each wrong doer should pay, but this does not constitute a sufficient reason for making one pay damages for an
Reversed.