Shull ex rel. Shull v. Arie

Given, O. J. 1 I. We first notice appellant’s complaints against certain rulings on taking the evidence: The-mother of William Shull was permitted to testify, over defendant’s objection, that her son had two -children— the, plaintiff and one younger — and the age of each. Of this the defendant complains, and'cites Huggins v. Kavanaugh, 52 Iowa, 368, and Welch v. Jugenheimer, 56 Iowa, 11. Those were actions by the wife for injury to her means of support. In the first the plaintiff was permitted, against defendant’s objection, to show the number, age, and sex of the children, and of this the court said as follows r “The object and purpose in the introduction of this evidence must have been to affect the question of damage. The-thought, no doubt, was that the extent of the recovery depended, at léast somewhat, upon the number, age, and sex of the children. We do not believe such is the law. The statute gives a right of action to every child injured in his means of support, as well as to the wife. As each has a right of action, neither can recover for the damages sustained by the other. Nor can the plaintiff’s damages be in-' creased because she has a larger number of children, or diminished because she has none; for her right to recovery is-based on the loss of means for her support, and not for the-support of her children.” The reason for that ruling does not apply to this case. True, neither wife nor child can re-' cover, except for injury to its individual means of support. . Neither can recover’for injury to the means of support of the-. [173] .■other. B\it, in view of the difference in the relations and liabilities of mother and child, such evidence would be prejudicial to the defendant in one case, and not in the other. The wife being liable for the support of -her minor children, •evidence as to their number and ages would incline a jury to allow larger damages than the wife had sustained in her •own means of support; but not so in the case of a minor child, who owes no support to the mother. Evidence that there were other minor children, each of whom had the same right of action as the plaintiff, would rather incline a jury to give less damages to one child, because of the defendant’s liability to the others. This plaintiff is entitled to recover, if at all, just what damage he has suffered in his means of support by reason of the wrong alleged. The support that sober fathers furnish their children is not uniform. The inquiry is, what support would this father have given to this child, had he continued to be a sober man, and how much was that support lessened by reason of his intoxication, caused or contributed to by defendant ? The number of minor children to be supported would seem to enter into this inquiry, but, be this true or not, we think the defendant Avas diced by the admission of this evidence. 2 TI- The charge in the petition is that the defendant unlawfully sold intoxicating liquors to plaintiff’s father during the years 1896 and 1897 “until.he became wholly besotted, and remained in a condition of habitual intoxication by reason of these sales.” William Shull Avas permitted to testify, over defendant’s objection, that he “used to get drunk quite frequently in 1896 and 1897, and up to spring of 1898.” This evidence was admissible to shoAV the effect that the sales made by the defendant in 1896 and 1897 had upon Shull, and that they had caused him to become besotted and habitually intoxicated. Objection is also made to Shull’s testimony as to the conversation with. B. Arie, father of the defendant, who had been examined on behalf of the defendant. No reason is given why- this evi [174] dence was improperly admitted, and it seems to rxs that none-can be given, as it went directly to show the interest of the-witness B. Arie in this case. 3 III. The court instructed that in determining the-amount .of actual damage the jury should consider “the age- and condition of this plaintiff.” It appears that plaintiff' was injured so that amputation of one of his legs became necessary. Appellant insists that this instruction unduly emphasized this misfortune. Plaintiff’s. loss of leg was as proper to be considered as his age. It directly affects the support which he required. 4 IY. The court instructed that it was incumbent on the-plaintiff to show “that the defendant, either by himself or his employes or agents, gave or sold the plaintiff’s father intoxicating liquors.” Defendant contends that as the-petition charges the sales to have been by Oscar B. Arie, and does not charge that they were by his employes or agents,. the instruction is erroneous. It is not claimed that the defendant is not liable for sales made by his-employes or agents with his authority, but that in such case-it must be so alleged. While it is true that both the principal and agent are each liable, it requires no argument to show that the authorized sale by the agent is, in law, a sale by the principal. See Judge v. Jordan, 81 Iowa, 523. 5 Y. There was evidence tending to show that liquors-had been purchased in defendant’s saloon from different bartenders named, including one Ham. Each of these bartenders, except Ham, was examined on behalf of the dofendant. Plaintiff’s counsel in the opening argument-gave as a reason why Ham had not been called that no statement had been filed, as required by law, showing that Ham was employed as a bartender. A bundle of papers said to be a statement of consent were offered in evidence by the -defendant, and properly excluded, on objection of the plaintiff, for the reason that the question whether the saloon was condticted' in compliance with 'the mulct law is not involved [175] in this case. Counsel, when making said remarks, took this= bundle of paper in his hand, but said nothing as to what they were. Objection being made to the remarks, the court said:“I think, perhaps, the court ought to say that these statements, if there has been reference to them' in the matter of’ evidence on the question whether the saloon was run legally or otherwise, are immaterial in this case.” It must have been plain to counsel, especially after these remarks by the court,, that it was immaterial in this case whether or not Ham had a legal right to sell intoxicating liquors; and yet, after the remarks by the court, counsel repeated his statement. We-are at a loss to know why counsel persisted in pressing this immaterial matter upon the attention o# the jury, and equally at a loss to see wherein defendant was prejudiced thereby. It did not go to show that the sales to Shull were legal or illegal, nor to enlarge or diminish the injury to the plaintiff’s means of support. We discover no prejudicial error in the record, and the judgment is therefore affirmed.