La France v. Krayer

42 Iowa 143 | Iowa | 1875

Cole, J

This action is brought under Code, Sec. 1557, which enacts that “every wife, child, parent, guardian, employe, or other person, who shall be injured in person or property, or means of support, by any intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name against any person who shall by selling intoxicating liquors cause the intoxication of such person for all damages sustained, as well as exemplary damages.” * * * * * * ..

It is also enacted: “Sec. 1558. For all fines and costs assessed or judgments rendered of any kind against any person for a violation of any provision of this chapter, the personal or real property, except the homestead as now provided by law, of such person, as well as the property, personal or real; occupied and used for that purpose, with the consent and knowledge of the owner thereof or his agent, by the person manufacturing or selling intoxicating liquors, contrary to the provisions of this chapter, shall be liable, and all such fines, costs and judgments be a lien on such real estate until paid.” * * * *

i. intoxicata^oinuSSifty: action. Upon the question of the joint liability of the defendant McGivern with his co-defendants, who kept other and distinct spoons, having no connection whatever with his, in th® business carried on therein, nor with the business of each other, there cannot, upon principle, it seems to us, be any question that they are not jointly liable. For when two or more parties act each for himself in producing a result injurious to the plaintiff, they are not jointly liable. Bard v. Yohn, 26 Penn., 482.

2 _._. ■ A joint liability arises when an immediate act is done by the co-operation or joint act of two or moi'e persons. Mere successive wrongs, being the independent acts of the persons doing them, will not create a joint liability, although the wrongs may be committed against the same person. There must be concurrent action, a co-operation or a consent or approval in the accomplishment by the wrong-doers of the particular wrong, in order to make them jointly liable. And it has been held that a joint action may not be brought against a physician who prescribed and an apothecary who put up the noxious medicine. In this case, the sale by each to the husband of plaintiff, resulting in her injury, became an independent and complete cause of action; and a sale to him of other intoxicating liquors by another person on the next day, the next week, or the next month, woiild not give a joint right of action either for the first or last sale. They are manifestly, under the statute, each complete in itself.

. But we are not tobe understood as denying a joint liability i.n cases where the successive sales by several have produced a particular intoxication from which the injury sued for has resulted.

■ But it is urged by appellant’s counsel that these defendants are jointly bound because, by the Code, “ Sec. 2550. Where two or more persons are. bound by contract, or by judgment, decree or statute, whether jointly only, or jointly and severally, or severally only, and including parties to negotiable paper, common orders, and checks and sureties on the same or separate instruments, or by any liability growing out of the same, the aetion thereon may at the plaintiff’s option be brought against any or all of them.” * * * * * * * * *

. And it is argued that the. defendants are bound hy statute, and, therefore, the action may be brought against “ any or all.” But this is a very manifest misapprehension of this statute and the basis of this action. These defendants are not bound hy statute; but they have incurred a liability under a statute. They are not bound by statute to pay to plaintiff either jointly or severally any sum of money; but, having sold to plaintiff’s husband intoxicating liquors to her damage, a cause of action arises to her under the statute for such damage. It is the wrongful act of defendants that gives to plaintiff her cause of action. Any other view would make every person, ■who had made himself liable to a statutory action, liable jointly with every other person who may have incurred a liability under a statute. The court, therefore, did not err in holding that the action was not joint.

_._. • But, in sustaining the motion to strike from the petition the names of the owners of the saloon and the real estate whereon the sale was made, the court, in our opinion, did err. By Sec. 1558, quoted above, it is clear that their property is liable for any judgment which the plaintiff may recover against McGfivern; and that judgment will become a lien upon that property.

The only way to enforce a lien is by an action against the owners of the property whereon the lien is sought. While the plaintiff might have brought her action against the seller of the intoxicating liquors alone,- and having recovered judgment therein might, by another action against the owners,enforce it; yet she has the right to join them in the one action and therein obtain complete relief. Eor this error the j fidgetis Reversed.