158 Iowa 719 | Iowa | 1912
The plaintiff is a minor son of Arnold Lee, deceased, and sued by his mother, as next friend, for loss in his means of support. The defendant operated, a saloon at Arion, and was alleged in the first count of the petition to have sold or given intoxicating liquors to said Arnold Lee on August 3, 1909, who drank the same, and-that said liquors so sold or given caused or contributed to his intoxication, and that while on the way from Arion to Dow City, when so intoxicated, he fell or was thrown from the wagon in which he was riding by reason of the team becoming frightened by the shouting and hallooing of said Lee and one Shaffer, and was thereby killed. In the second count of the petition it is alleged that defendant sold or gave to one Shaffer a pony keg of beer and put a spigot in it; that this was put in Shaffer’s wagon; that Lee accompanied Shaffer from Arion to Dow City and that Shaffer became intoxicated on the way from drinking beer from said beg, and when near Arion, and while so intoxicated, by shouting and hallooing, frightened his team, caused it to lunge forward and start to run away, and thereby Lee was thrown from the wagon and killed. The defense interposed was a general denial. Appellant has assigned only sixty-eight errors, thirty-seven of which are argued. Such as seem of sufficient gravity to require it will be considered.
„ 3. Intoxicating iury °by Intoxi damages [s<ix-: tent of proof. III. Exception is taken to several of the instructions given and refusal of those requested. All of the latter in so far as correctly stating the -law were em-_ _ b°died or negatived by those given. Most the latter were very short, and, of course, c011i¿[ not f0r this reason be very comprehensive, but we think the law fairly stated in the charge as a whole except in the instructions hereafter criticized.
In the thirteenth instruction' the jury was told that it was only necessary “to show that the accident occurred ivhile the father was in fact intoxicated by the use of intoxicating liquors sold or given to him by defendant or another for him,” and that plaintiff was not required to show as a condition to his right of recovery on the first count that “the father would not have met with the accident resulting in
The twenty-first instruction submitted the issue on the theory contended for, however, and in the twenty-second the jury was told, in substance, that, unless injury to means of support was in consequence of intoxication, there could be no recovery. Appellant has no room for complaint of a greater burden being east on plaintiff than the law exacts. We have called attention to these discrepancies that they may be avoided on another trial.
But, according to the instruction given, these matters have no bearing, and the fact of deceased’s excessive use of intoxicants or that he may have become a drunkard might not have been considered in determining the amount of the verdict. Of course, as said in the last clause of the instruction, what deceased’s habits may have been did not constitute a defense, but these were material in determining the loss in means of support plaintiff suffered through his father’s death. Dunlavey v. Watson, 38 Iowa, 398; Uldrich v. Gilmore, 35 Neb. 288 (53 N. W. 135) ; Black, Intoxicating Liquor section 324. In Woolheather v. Risley, 38 Iowa, 486, followed in Huff v. Aultman, 69 Iowa, 71, the rule was laid down that, if a husband had been addicted to drink and failed to support bis wife prior to the time defendant had furnished him intoxicating liquors, this could not be considered as bearing on the measure of damages in the loss in means of support claimed by the wife during the period defendant was furnishing him liquors. This was tantamount to saying that because the husband had formerly obtained' liquors elsewhere it afforded defendant no justification for selling or giving him liquors during the period alleged, and thereby causing his intoxication, and depriving his wife of the support to which she was entitled. Here the injury was in causing death and all the probabilities of the future were open to inquiry, and, of course, might be estimated only from the life deceased had lived'in the past. But for his death, what was