46 Iowa 195 | Iowa | 1877
I. The plaintiff’s husband was found dead in the road on the 28th day of February, 1875. He had become very intemperate in his habits and the evidence tends to show that he died by exposure to the cold in a state of intoxication. The defendants are dealers in groceries and liquors. On the day of the said John Rafferty’s death he left home for the purpose of going to the defendants’ store to make some purchases. On that day he visited the store, obtained a bottle of whiskey and died on the way home. Much evidence was introduced showing that for a long time previous to that day the deceased had been in the habit of purchasing liquor of defendants. ,
It is claimed by appellants, however, that the evidence does not show that deceased became intoxica,ted upon any liquors obtained of the defendants. This objection may be well taken in regal’d to the liquor obtained of the defendants prior to the day on which he died. As to the intoxication upon that day, while the evidence does not establish to a certainty that the deceased became intoxicated upon the liquor obtained at the defendants’ store, the circumstances were such as to justify such finding by the jury. The verdict may have been based upon such finding and the evidence as to prior purchases disregarded.
II. The plaintiff testified that after the death of her husband she said to the defendant, Buckman: ‘‘You always said that you would not.' give my husband liquor;” that he replied: “Yes, Jane, I know that, but. he always got it.” Afterwards the defendants’ counsel examined Buckman upon the point.. They interrogated him as follows:
Q. “Tell the conversation between you and the plaintiff when you were at her house, about her husband getting liquor at your place.”
A. “It appears to me that she said she told me not to give Rafferty any liquor. I told her, ‘Yes, Jane, but he got it-.’”
A. “He got it when he fetched orders and he got it . through other people who had liquor in their houses when he passed.”
Q. “What getting of liquor by the plaintiff’s husband did you mean wdien you said to her that he ‘ got it,’ or ‘ always got it’?”
To this last question the plaintiff objected, and the objection was sustained and defendants excepted.
It is contended that the jury might have understood that he admitted that the deceased always got liquor at his store, and that he should have been allowed to show what he intended. Undoubtedly an admission may be explained, unless it contains a statement which has been acted upon. It seems to us, however, that the witness did explain in answer to the preceding question what he meant, and that the defendants were not prejudiced by the ruling complained of.
The difficulty in discriminating between the injuries produced by one person and those produced by another, is the same which arises in this case. However great it may be, we think it is not such as to prevent a recovery. In this case the evidence does not show, in respect to some of the intoxications proven, whether they were produced by liquor sold with or without her order. The appellants say, therefore, that she
Without stopping to inquire whether, under the statute, all gifts of liquors may no,t be regarded as sales, we are of the opinion that there was some evidence tending to show that the furnishing of the liquor in this case was a sale in fact. The evidence shows that the defendants were dealers in liquors and groceries, and that the plaintiff’s husband was a customer. From these circumstances the jury had a right to •consider whether, if the liquor was furnished without any direct charge therefor, it was not, nevertheless, furnished with a pecuniary motive, and with the understanding that it was to be paid for in Rafferty’s general trade. If it was, we think it might be regarded as a sale.
■ Y. The liquor obtained by Rafferty at the defendants’ store on the day he died was furnished by a clerk, and there
Q. “ How do you know that he had been to the defendants’ store'or mill at the time to which you refer?”
A. “ He would go there often to get grocery goods for the house or go to the mill for grists, when he would fetch me things from the store which we wanted, and we almost always traded there; that is how I know he went to their store.”
Q. “Have you any other means of knowing that he had been to their mill or store on those occasions when, you say, he thus came home intoxicated?”
A. “ When he would be leaving my own house and would
The testimony of plaintiff, that when her husband came home from defendants’ store or mill he would be intoxicated, the defendants claim was wrongly admitted, because she.shows that she had no personal knowledge that he had been there. While his going away saying that he was going there might not be evidence that he went there, yet if he brought home store goods on those occasions which he went away with the avowed, purpose of purchasing, and if he could not well have purchased them elsewhere, and especially if, as the witness testified, she- found the goods charged there, she had some evidence that he had been there at those times.
“ 2d. That the alleged death and damages based thereon are too remote and not the proximate or natural consequence of the injury complained of.” The objection was overruled* and the tables admitted.
- It may well be doubted whether the tables were admissible. A person whose habits were such as those of the deceased did not have the ordinary prospect of life, nor was it so claimed by appellee. The tables were made to show the ordinary prospect and no other. But the defendants, while making this objection in their argument, did not make it-in the court below. The first objection there made is that the statute does hot authorize a recovery for injuries resulting from the death of the husband. But we think it does if the wife by her husband’s death is injured in her means of support. Upon this point -plaintiff shows that her husband was about thirty-nine years of age; that he was an industrious man when sober, and during that time provided well for his family. She shows clearly that she had a pecuniary interest in the continuance of his -life, as by its termination she lost the support which
So, again, the death that dissolved her marriage rendered her re-marriageable, and by a re-marriage her means of support might be superior to what she enjoyed with the deceased.However these contingencies should affect the amount of recovery wo do not think that they should operate to prevent it. She is at present deprived of the means of support which before her husband’s death sire derived from his earnings. There is no presumption that she will marry. There is a presumption in favor of the continuance of her life.
But it is said that her husband’s death was not the proximate result of the defendants’ acts; that it resulted from his own volition. Upon common law principles it might well be 'doubted whether the damages resulting from his death should not. be considered as remote. But those principles are not applicable to such a case. The doctrine contended for by appellants would preclude a recovery for injuries which, in such a case, the wife might sustain to her person. That the husband should become quarrelsome from the effects of liquor and abuse his wife is not more to be expected than that he should freeze to death ujDon a winter day if he attempted to travel unattended after he had lost the power of locomotion. But upon this subject we are not without adjudications. In Hocket v. Smelsly, 63 Ills., the plaintiff’s husband, having become intoxicated by liquor sold by the defendant, drove his horse and buggy into a river and was drowned. It was-held, under a similar statute, that she was entitled to recover. See, also, Beder v. Newton, 54 N. H., 117, and Jackson v. Brookins, 12 Supreme Court Rep., N. Y. (5 Hun), 530.
It is said that it informs the jury that the plaintiff is entitled to recover for expected earnings beyond the period of the expectation of her husband’s life, if her expectation of life was greater than his. But such, we think, is not the meaning of the instruction. The earnings of deceased could not be greater than is warranted by his expectation of life, and her recovery could not be greater than such earnings. This is so easily apparent we do not think it possible that the jury could have been misled.
If, indeed, any doubt could arise from the words above quoted, it would, we think, be removed by what follows in the same instruction. The jury was told that for actual damages, if any, she would be entitled to such sum, not exceeding the amount claimed, as would from a pecuniary point of view make her whole. The court then proceeded to enumerate the different facts to be considered in arriving at an estimate, giving, as we think, a correct expression of the law upon the subject. We discover no error in the rulings of the court.
Affirmed.