#### Vertura Miller v. Henry Hammers, Appellant.

Instruction: harmless error. If it be true that a gift of liquor tc an intoxicated person creates no liability in damages, a charge 1 making one liable for “furnishing” liquor, is not prejudicial where it is conclusively shown that the liquor was sold, and where other instructions make selling an essential.

Exemplary Damages may be recovered under Code, 1557, if actual 2 damages caused by selling liquor are shown. Willfulness and 3 wanton disregard of the rights of others are not essential.

Misconduct of Counsel. Counsel said that certain witnesses testified 4 as they did because they and defendants were Germans and old friends, and said, “the witnesses call itB. B., you and I know it was beer.” *Held,*it might well have been omitted, but it is not cause for reversal.

*Appeal from Mills District Court.*— Hon. A. B. Thor-nell, Judge.

Saturday, February 9, 1895.

Action for damages for the alleged unlawful sale of intoxicating liquors. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant *appeals.*

Affirmed.

*L. T. Qenung, C. E. Dean,*and *Smith McPherson*for appellant.

*Shirley Gillilland E. B. Woodruff*for appellee.

Kotbrock, J.

I. The plaintiff is the widow of Andrew M. Miller, deceased, who came to Ms death on the eighteenth day of September, 1892, by falling out of a wagon while intoxicated. . The claim is made in the petition that the appellant and other defendants in the action sold plaintiff’s husband the intoxicating *747liquors wMch produced Ms drunken condition, and that lie was killed by reason thereof. She demanded damages because the death, of her husband deprived her of her means of support. There were four defendants in all. The jury returned their verdict against three of them, and for the other. . The defendant Hammers is the only one which app eals.

It appears that the plaintiff’s husband was a plasterer by occupation, and resided in the city of Glen-wood. He owned a team of houses and a wagon. On the morning of the eighteenth day of September, 1892, he and some two or three others went into the country, in the wagon;, to do. some work. One of the men who •Was with him testified as a witness, in part, as follows): “I reside in Glenwood, and have lived there for about seventeen years. I was acquainted with A. M. Miller in Ms lifetime. He was a plasterer. He earned four dollars a day. I have seen him working quite a number of times. He lived across the railroad in Glen-wood. Sometimes he laid brick. I recollect the circumstances of his death. I saw him on the south, side of the square in Glenwood the day he was killed. He was going out beyond Mineóla to work for a man- whose name, I think, was Hansen. Going out to build a flue and do some plastering. I was engaged on the sarnie piece of work with him. ‘ I went over to Mineóla with Mm, in the same conveyance. We had no liquor with us that morning before going. We arrived at Mineóla about ten o’clock. We there got some crackers and cheese. Went over to dry goods store and grocery. We took this lunch at the hotel in Mineóla. We got our lunch that morning at the hotel. In the hotel there is a bar in one part. I think it is in the north. We took the lunch in the room where the bar was. We had some beer to drink there that morning. We took about three glasses apiece. I didn’t get anything else *748there. At that time there was Miller, Walling, Walling’s boy, and myself. The hoy’s name was Hiram. After we had lunch, a quart of whisky was ordered. Mr. Walling got that. After that we went out and got into the wagon, and started to go up to this man’s, where we were going to wort; but in driving out of town there was a plank, as we drove down town, ran across the street there, part way, that the off fore wheel struck, and threw the wheel under the wagon, and stopped the team, and threw Mr. Walling off at the same time. I then got off the wagon. I pulled Walling’s knee back in, and carried him back to the hotel, into the dining room, at the same hotel where we had been. Mr. Miller and I first got a doctor. Miller and I got into the wagon, and drove out to Hansen’s. There was a quart of whisky in there that went out to Hansen’s. It was about an hour after we got to the hotel that we started for Hansen’s. We did not drink any of the whisky in the hotel. We drank some of the whisky after we got out to Hansen’s. We remained at Hansen’s a couple of hours. We had a lunch there. With our lunch we had some of the whisky. Then we came back to Mineóla. The whisky, or the balance of it, was left at Hansen’s. I could not say what portion of it was left in the bottle. Miller drank some at Hansen’s. It was about the middle of the afternoon when we got back to Mineóla This was September 19, 1892. We went back to the hotel, where we got some more beer to drink. After that we went upstairs where Walling was. I was with Miller the whole of the afternoon. After that we went across the street to Mr. Hammers’. I recognize Mr. Hammers now in the court room. He was the man 1 referred to when I say we went over to Hammers’ place. We got some beer there. Miller drank some of it. Mr. Hammers sold us a couple of bottles. -Guess Hansen was also in there. Miller was *749then getting pretty drunk. I don’t remember of seeing the defendant Breemer there. I don’t know whether he was connected with the place of business or not. We then went to another place where liquors were sold, and Miller and I bought a drink. That was a place above the dry goods store. Do not know whose place it was. Cannot deseribe the man. That was along in the evening. After we took this beer that was sold by Henry Hammers, we drank a bottle. Miller was then pretty drunk. Miller was staggering around. He could not control his movements. When we started to go hoih'e, it was about sundown. Miller tried to get liquor at some of these places afterwards, and it was refused. I cannot tell, because I was getting pretty ful]. I remember the circumstances. This was just before we started for home. Miller was so drunk that it took a second trial to get into the wagon. After we got in, the team ran away with us. It was Miller’s team. Miller could not manage the team. My condition was the same as Miller’s. The team ran seventy-five or one hundred yards. Miller was thrown out over top of me, and thrown against the fence post,* striking with the top of Ms head, which caved his skull in. He lived until three o’clock the next morning. He didn’t speak after he was thrown out. The doctor took a stitch or two in the top of his head.” Shirley Grillilland, another witness for the plaintiff, testified in substance to an admission made by appellant that he had sold a certain drink, called “B. B.,” to the deceased, or to the party of men traveling- in the wagon. We have set out this testimony of the witnesses for the reason that it is strenuously contended that the verdict against the appellant was not authorized by the evidence. It is true that appellant testified that he did not furnish the party any intoxicating liquor. He denied the conversation testified to by *750Gillilland, and there was other evidence in corroboration of appellant, in Ms denial of having made such’ sale. There was a fair conflict in the evidence on this vital question in the case, and, under familiar rules, we are not authorized to interfere with the verdict

II. The court, in the charge to the jury, directed them that the defendants were liable if they “sold or 1 furnished” Miller intoxicating liquors that caused Or contributed to Ms intoxication, and that such intoxication was the immediate cause of the accident resulting in his death. The question is made that the mere furnishing of the intoxicating liquors, without making a sale, was insufficient to authorize a recovery. All of the evidence in the case shows that whatever liquor was furnished was a sale, and not given away as by gift And the jury were repeatedly told in the instructions that if the defendants sold the liquor they would be liable. There was therefore no prejudice in the uise of the word “furnishing,” even if the delivering of the drink was without the formality of a sale. All of the •evidence shows that deceased was noticeably intoxicated at the time that he met the appellant. Under such circumstancs, it is questionable, to say the least, whether liability would not be incurred by a gift, the same as by a sale. See *Welch v. Jugenheimer,*56 Iowa, 12, 8 N. W. Rep. 673.

III. Section 1557 of the Code provides that in cases like this the plaintiff! may recover “for all damages actually sustained as well as exemplary damages.” 2 The court instructed the jury on the question of exemplary damages as follows: “If you should find that plaintiff is entitled to recover actual damages, she will be entitled to exemplary damages as well. Usually, exemplary damages are discretionary with the jury, — that is, the jury may *751allow them or not, as they think best, — but under this statute under which this case is brought, if actual damages are given, exemplary damages must be added. But of the amount to be given you are the sole judges, beeping in view that exemplary damages are given as a punishment for the wrong done to plaintiff, and as an example that will prevent other persons from doing a like wrong in the future; and, in so doing, award such exemplary damages as, in your sound judgment and discretion, should be awarded. But exemplary damages cannot be awarded unless plaintiff has 3 shown herself entitled to actual damages.” The doctrine of this part of .the charge is attacked because the question of the willfulness and wanton disregard of the rights of others is not, by the instructions, made necessary elements in the matter of allowing exemplary damages. The rule of the instructions is in exact line with the cases of *Fox v. Wunderlich,*64 Iowa, 187, 20 N. W. Rep. 7, and *Thill v. Pohlman,*76 Iowa, 638, 41 N. W. Rep. 385, and we are not disposed to change the rule.

IV. It is urged that one of the counsel for the plaintiff was guilty of such misconduct in the closing 4 argument to the jury as to require a reversal of the judgment. Without setting out the language used by counsel in argument, we are content to say that, while it might well have been omitted, we do not think it was such misconduct as to warrant our interference with the vea'tpct and judgment We discover no ground f6r reversal and the judgment is *affirmed.*