Peterson v. Brackey

Mar 11, 1909

Reporters:: ,
Before:: McClain

McClain, J.

The defendants are husband and wife,’ the latter being the sister of the wife of deceased. The two families resided on farms in the same general neighborhood, and on Sunday, the léth day of July, 1907, defendants drove to the home of the deceased on a friendly visit, and also with the ‘purpose of discussing with deceased a proposed trade of hogs. Defendants had with them in their buggy a bottle containing a mixture of alcohol and water for use as a beverage, from which, at the solicitation of defendants, the deceased took a drink. About sundown, at the invitation of defendants, the deceased and his wife, in a separate conveyance with three of their small children, went with defendants to their home for the purpose of seeing the hogs offered to be traded. On arriving there the defendant Albert Brackey directed his wife to mix*up some more liquor, which she did, filling a teacup, as she testified, with one part alcohol ■and two parts water, from which deceased and his wife and Albert Brackey drank, using a little glass which could be dipped into the teacup. Of this mixture the deceased drank two glasses. About this time ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Turine Brackey, at her husband’s suggestion, brought up from the cellar a quart bottle of beer, of which deceased drank about one-third. Albert Brackey and the deceased then went to the barn, and on returning, another teacup full of the alcohol mixture was fixed up, and the deceased again drank two glasses. Then-the parties went to look at the hogs, and, *78returning, another cupful of mixed alcohol was prepared, this time as Turin© Brackey testified with one-third alcohol, one-third water, and one-third coffee. The wife of deceased, who had been drinking of the mixture with her husband, felt “dizzy and funny” from what she drank, and something was said about the drink being too strong. Supper was served by defendants about ten o’clock. The wife of deceased became sick and lay down on a bed, and the deceased lay ou the floor near by. About one o’clock the defendants went to bed in another part of the house, leaving deceased on the floor. The next morning the wife of deceased found him dead beside the bed, where he had been the night before. Two physicians, one of them the coroner, testified that in their opinion he had died as the result of drinking too much liquor. In addition to this evidence, as to which there is no particular controversy, there was proof in behalf ‘of plaintiff of declarations of defendant Turine Brackey that her husband had, after the drinking by deceased described above, given him a drink of undiluted alcohol. This declaration was made after Turine Brackey had ceased to live with her husband. There is some conflict in the evidence as to the amount of alcohol consumed by the parties on this evening, Turine Brackey testifying that a two-gallon jug full of alcohol had been brought home by her husband after the 4th of July, only a small portion of which had been used prior to the evening in question, but she testified that there was only about a quart of alcohol left in the jug at that time, and that during the evening the jug was emptied.

1. Intoxicating liquors: damages, evidence. I. In behalf of defendant Albert Brackey it is contended that a motion to direct a verdict in his favor should have been sustained, for the reason that, aside from the evidence relating to declarations of Turine Brackey as to his administering to deceased ^ ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍0f pure alcohol, which declarations were not admissible as against him, there was not suffi*79cient evidence to justify a finding by tbe jury that sufficient alcohol had been given deceased to cause his death. A reading of the entire record satisfies us that this contention is without merit. The whole question was left to the jury, with instructions not complained of in this respect, and the conclusion of the jury that there was sufficient evidence to support a finding for the plaintiff against Albert Brackey can not properly be interfered with. There was expert evidence tending to show that not to exceed one-third of a quart of pure alcohol taken within twenty-four hours might cause death, and there is enough in the record, without the declarations of Turine Brackey, to support a finding by the jury that deceased was given that amount.

2. Same: joint liability of husband and wife: judgment: motion in arrest. II. By motion in arrest of judgment an effort was made by defendants to ‘raise the question whether Turine Brackey was properly joined as defendant with her husband, the claim being that she was presumed to act under the coercion of her husband. The overruling of this motion is assigned as error. It is sufficient to say that no such question was raised during the trial. No special pleading was necessary to raise the question, but by request for instructions the defendant Turine Brackey could have had the question submitted to the jury/if proper for its consideration, and, by motion to direct a verdict in her favor for want of evidence to charge her with liability, the court could have been called upon to rule upon the question as a matter of law. But in no manner, in pleadings, offers of or objections to evidence, motion to direct a verdict, or request for instructions, did counsel advise the court that Turine Brackey’s joint liability for any tort found to have been committed was questioned. There was ample evidence that she -acted on her own responsibility, and not under her husband’s coercion in mixing the liquor and giving it to deceased, and in giving him his *80part of the bottle of beer. She can not first complain in a motion in arrest of judgment that a question of fact was not passed upon by the court or expressly submitted to the jury.

3. Evidence life expectancy: tables. .III. Life ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tables offered in evidence for plaintiff were objected to by defendant on the ground that it affirmatively appeared that in view of the habits of decedent such tables did not tend to show what his expectancy of life would have been. But such tables may _ 7 , go to the jury for what they are worth, although they relate to the expectancy of a person in good health, and without impairment by bad habits. They are not conclusive, but may be considered by the jury in connection with evidence as to the physical condition, vocation and habits of the person, whose probable length of life is to be estimated by the jury. Trott v. Chicago, R. I. & P. R. Co., 115 Iowa, 80; Farrell v. Chicago, R. I. & P. R. Co., 123 Iowa, 690; Croft v. Chicago, R. I. & P. R. Co., 134 Iowa, 411; Clark v. Van Vleck, 135 Iowa, 194. In Knott v. Peterson, 125 Iowa, 404, this court has expressly held life tables admissible in actions of this character.

4. Evidence of Life instruction IY. The instruction given by the court to the jury for determining the allowance to be made in behalf of each of the minor heirs in case the jury should determine upon a verdict for the plaintiff is complained of, in that no rule is given to the jury for determining the reasonable expectancy of the life of deceased. But the jury was told to’ consider the physical condition, habits and probable ability of the deceased to furnish his children support, and also the probable duration of such support, taking into consideration all the evidence introduced on the trial upon the subject, reducing the amount, if any, to its present worth or value. In the absence of a’ request for any more specific instruction we think this was. sufficient, and that the jury *81could not have been misled into thinking that they were to give no consideration to the life tables on the one hand, or on the other hand that such tables were conclusive.

5. intoxicating SfeSÍ piary damages. V. We can discover no error in the instructions with reference to the right of plaintiff to recover, under the provisions of Code, section 2418, relating to recovery, by a guar(iian for a minor child of one whose intoxication has been caused by the act of ano£ber in selling or giving intoxicating liquors to the parent, of the damages suffered in person, property, or means of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍support by reason of such act. It is complained that the court directed the jury to allow exemplary damages, but the statute expressly provides that the wrongdoer in such case shall be liable for exemplary damages, and the awarding of such damages is discretionary with the jury only as to amount if the wrong is established. Fox v. Wunderlich, 64 Iowa, 187; Thill v. Pohlman, 76 Iowa, 638; Miller v. Hammers, 93 Iowa, 746.

6 evidenceqS?stbnsrlnstruction. VI. With regard to the testimony of medical men, given in answer to hypothetical questions, the jurors were instructed as follows: “If the evidence introduced upon fhe shows the acts, conduct, demeanor and conditions of said Tollef Peterson to have been substantially as stated in such hypothetical questions, then the -testimony of such medical witnesses, based upon such questions, may be given such weight and value as you believe them fairly entitled to. If, however, the evidence in this case does not substantially sustain the supposed state of facts presented in the hypothetical questions asked such witnesses or if the testimony of. such witnesses is in conflict with physical facts, then you should attach no weight whatever to the answers of medical witnesses founded thereon.” While it is left to the jury in this instruction to determine whether the facts assumed in the hypothetical questions have’ been found by the jury to be “substantially as stated in such hypothetical *82questions,” yet the jury is told that if not found to be substantially as stated, the answer of the medical witnesses to such questions are to be given no weight whatever. This we think to be in accordance with the rule announced in Kirsher v. Kirsher, 120 Iowa, 337; Stutsman v. Sharpless, 125 Iowa, 335; Ball v. Skinner, 134 Iowa, 298; Madden v. Saylor Coal Co., 133 Iowa, 699; In re Jones, 130 Iowa, 177, and Vannest v. Murphy, 135 Iowa, 123. In these cases it was held erroneous to leave it to the jury to say whether the facts stated in the hypothetical question are unsupported by the evidence in material respects or how much weight shall be given to the answers if there is a discrepancy between the facts assumed in the questions and those shown by the evidence. In the case last cited an instruction is criticised which left it to the jury to say whether the statements of fact assumed in the hypothetical questions were substantially correct, but it is not intimated that the case would have been ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reversed on this ground. It certainly is not necessary that the facts assumed in a hypothetical question shall be proven in every material detail to the dotting of an “i” and the crossing of a “t,” and, while the court might properly have omitted the word “substantially,” we can not believe that the jurors were misled by its use. It was not left to them to say which of the facts recited were material, but only to say whether the facts recited were substantially proven; that is, whether each of them was in substance found supported by a preponderance of the testimony. We think there was no prejudicial error in the instruction as given.

VII. The instructions asked for defendants and refused by the court are sufficiently covered by those given by the court on its own motion, and need not be specifically discussed.

We have considered the many other errors assigned, but find no questions raised which are of sufficient importance to merit a discussion.

*83Appellants’ motion, submitted with, the case, to strike appellee’s amendment to the abstract, and to tax the cost of portions thereof to appellee, is overruled.

There is no prejudicial error in the record, and the judgment is affirmed.