38 Iowa 486 | Iowa | 1874
— Previous to the trial the defendant made an application for a continuance, based on his own affidavit. The court refused to continue the cause, and of this appellant complains.
II. On the trial, plaintiff, on the witness stand, was asked by his counsel the following question: “ State whether or not your husband was intoxicated frequently for the two years last past, next preceding the first of last August?” The defendants’ counsel objected to the question on the grounds that it was leading and general.. The question propounded is not leading. Cochran v. Miller, 13 Iowa, 128. The question did not suggest the answer desired. It did not suggest to the witness whether an affirmative or negative answer was desired, and was, therefore, not.leading. 1 Grreenleaf’s Ev., §434, and cases cited in notes.
¥e find no error or abuse of discretion in the ruling of the court upon the various questions made upon the examination of the plaintiff as a witness. Nor was there error in the ruling of the court, striking out of the testimony of the witness Bonney the statement that he had drank with plaintiff’s husband the day before the trial. This statement was wholly immaterial and irrelevant to the issue. Nor does it appear in any way calculated to affect the credibility of the vfitness.
IV. The court at defendant’s request gave to the jury the following among other instructions:'
“4. If the jury find that the plaintiff’s husband drank intoxicating liquors at various places including the defendant’s, and became intoxicated, then in such case the defendant would not be liable for damages produced by such intoxication, .unless the jury find it to be a fact that such intoxication was caused by the defendant. [Modified by adding the following:] “ Or that he contributed to said intoxication.”
“5.' If the jury find that the plaintiff’s husband became intoxicated by liquor drank at various places, including the defendant’s, then the defendant would not be liable for damages caused by such intoxication, unless the jury find from a preponderance of evidence that fit was the liquor drank at the
Appellant insists that this statute must be strictly construed, both because it is derogatory to the common law, and on account of its penal character. If we should concede this position and apply the rule of the criminal law, we find .that although the penalties of the criminal statutes are denounced against those who commit crimes, yet that all those who, being present, in any manner aid, counsel, assist or abet in the commission of the act, are equally principal offenders.- If two persons wilfully administer distinct portions of poison to 'another, which together produce death, will it be claimed that neither of the parties can be punished because the death was not solely caused by the poison administered by either one of them? Most clearly not; so in this case if plaintiff’s husband had taken one or more glasses of liquor at some place other than at defendant’s saloon, which did not intoxicate him, and before its effect had passed off he obtained several glasses of liquor from defendant which together with that previously drank did cause intoxication, are both of the vendors of the
Y. The appellant requested the court to give the following instructions:
“If the plaintiff’s husband neglected his business, but would not have pursued his business, if sober, in that event his wife would suffer no damage in her means of support by such intoxication,- even if caused by the defendant:”
“If the plaintiff was in no worse condition after, or by. reason of the sale of liquors to her husband by the defendant, than she was before, she has not suffered in her means of support, and cannot recover therefor.”
The court refused to so instruct, and appellant assigns this ruling as error. The first of these instructions was properly refused, for the reason that there ivas no evidence tending to show that plaintiff’s husband “would not have pursued his business ” if he had kept sober.
IX. On a careful examination of the evidence we are satisfied that the verdict is sustained thereby, and that the judgment of the court thereon must be
Affirmed.