Applegate v. Winebrenner , 67 Iowa 235 ( 1885 )

Rothrock, J.

"l* INTOXTCATnreliquors: wronglul band-’aetfon damages” evidence. I. The appellee filed an additional abstract, the correctness of which is denied by the appellants. This would ordinarily compel us to resort to the transcript to settle the conflict in the abstracts. This Course is not necessary, however, in this case, There is enough in the record as made by the abstracts, and about which there is no dispute, to dispose qí the appeal. The action was commenced in September, 1884, and the plaintiff alleged that Winebrenner sold her husband intoxicating liquors for a period of six months previous thereto, and that the liquors so sold caused or contributed to his intoxication. The plaintiff was examined as a witness in her own behalf, and she was permitted to testily, against the plaintiff’s objection, that in September, 1883, her husband went to Marshalltown, and came home at 4 o’clock in the morning, and unjustly accused her of wrongful acts, and, while eating breakfast, a dispute arose, and he assaulted her, took her by the arms, choked her, threw her down and kicked her, so that she was “ black and blue” as large as her hand for nearly two weeks. The witness did not state that her husband was intoxicated when he committed this outrageous assault upon her. A witness who was present when the assault was made corroborated the plaintiff as to the assault, and stated that Applegate, her husband, “ had just been on a drunk, and was nervous and cross.”

This evidence was probably sufficient to justify the jury in finding that the personal abuse of the plaintiff was fairly attributable to the intoxication of her husband, and, if proper evidence in the case, it would add very materially to the plaintiff’s damages. But we are very clearly of the opinion that the evidence was improper. If the assault was the result of intoxication, there is no evidence whatever that the intoxication was produced or contributed to by liquors obtained at the defendant’s saloon. Another reason why the evidence should have been excluded is that the assault was committed long before the defendant wrongfully sold liquors to the plaintiff’s husband, as shown by the allegations of her petition.

2._:_: indietments ' dffeaudant.6 II. The plaintiff was permitted to introduce in evidence, over defendant’s objection, certain indictments against the defendant Winebrenner, and the record of convietions thereon. This Avas manifestly erroneous. It was not even shown in connection with this evidence that the indictments were founded upon unlawful sales made to plaintiff’s husband. We do not understand that counsel for appellee claim that this was competent evidence against Winebrenner, but they claim that the court allowed the evidence to go to the jury as tending to show that the defendant Sharp had notice that Winebrenner was using Sharp’s property as a place for unlawfully selling liquor. We cannot see upon what principle the evidence in question can be held as competent as to one defendant and not as to the other.

III. There are many other errors assigned and argued. As the case must be reversed for those above discussed, and as the record is in such condition that a resort to the transcript would be necessary to determine some of the questions made, we will go no further in the case. It is proper to observe that we think the court was correct in refusing to submit to the jury some of the special interrogatories asked to be submitted by the defendants. Others of them presented questions pertinent to the case, and were not objectionable in form, and ought to have been submitted.

Eeveesed.