#### Mary J. Judge, Appellee, v. John Jordan *et al.,*Appellants.

1. Intoxicating Liquors: sales contrary to law : damages : evidence : VERDICT. The credibility of the testimony of a witness is for the jury to determine, and its verdict will not be set aside, because the testimony whereon it is based is apparently in conflict with that given by the witness upon another trial.

2. -:-:-:-- : ADMISSIONS : INSTRUCTIONS TO JURY. Pacts testified to by a party to a cause against his interest, if unquestioned, have the force of an admission as against the party so testifying, and the jury may be so instructed.

3.-:-:-: instructions. In an action by a married woman against a saloon keeper for damages on account of the sale of intoxicating liquors to her husband, proof of having furnished intoxicating liquors to the husband upon the order and promise of payment ,by a third person is sufficient to sustain the action.

*5204. -:- :-:-. Instructions requested by a party to a cause not pertinent to the issues, or with reference to questions upon which no evidence was introduced upon the trial, should be refused.

5.--:-:-:-. An instruction to a jury, that if they found that a witness had testified falsely as to material matters knowingly and intentionally, they *might*disregard his testimony altogether, is not erroneous.

6.-:-:-: VERDICT : practice. The jury were directed by the court that in the event of their finding a verdict against the defendant Jordan, they should answer a certain interrogatory submitted with the instructions, and return same with their general verdict. The jury returned a verdict against Jordan without answering the interrogatory. After the verdict had been marked filed, and had been read by the court, the court returned it to the jury with the verbal direction that they “ retire and consider further of their verdict, and return a verdict with answer to the special interrogatory submitted in the charge of the court.” *Held,*that the action of the court was proper, and that defendants were not prejudiced thereby.

7.-:-:-: husband and wise : declarations. In an action by a married woman proof of the declarations of her husband, alleged to have been made while acting as the agent of the wife, are not admissible in evidence against the wife in the absence of proof of such agency.

*Appeal from Clinton District Court.*— IIoN. A. Howat, Judge.

Wednesday, October 29, 1890.

PLAINTIFF, for cause of action against the defendant Jordan, alleges that on the second day of January, 1887, at the “Elkhorn saloon, kept by said Jordan, in the city of Lyons, said Jordan sold intoxicating liquors to the plaintiff’s husband, Michael H. Judge, contrary to law, thereby causing her husband to become intoxicated in consequence of which she has been injured in her means of support, and put to expense for medicines, and medical and surgical treatment of her husband.” Plaintiff alleges that the property, wherein the saloon was kept and the liquors sold, was the property of defendant, Patrick O’ Conner, and was used by J ordan *521for said unlawful business, with the knowledge of the defendant O’Conner. The defendant Jordan answered denying generally, and defendant O’Conner answered admitting that he was the owner of the premises described, and denying any knowledge as to the other allegations of the petition. Trial to a jury, and verdict and judgment for plaintiff. The defendants appeal.

*W. O. Qrohe*and *Bills & McCoy,*for appellants.

*J. S. Darling*and *J. H.*Flint, for appellee.

GfivEN, J.

1 Intoxicating ' liquors: sales contrary to law: aam-ages: evi-diet00:ver' I. A brief statement of the undisputed facts is necessary to an understanding of the questions discussed. On and for some time prior to *^*January 2,1887, the defendant Jordan kept *u j ?** a saloon known as “The Elkhorn,” in the premises described, under a lease from defendant O’Conner. On Sunday, January 2, 1887, a fire broke out in a building near the saloon belonging to Mr. Cage. During the fire, the saloon was kept open and warm, and resorted to by many persons to warm themselves, the day being exceedingly cold ; and some property taken from the burning building was deposited in the saloon. Mr. Gage said to defendant Jordan: “ Give the fire department a round on me. I will pay for it.” Jordan and his bartender dealt out intoxicating liquors, for which Mr. Gage afterwards paid. Plaintiff’s husband was at his home when the alarm of fire was given, and proceeded at once to the burning building, where, in common with many other citizens, he assisted in removing property from the burning building. While so engaged, he took a drink from a bottle of whiskey that was passed among the men at a ladder at the building. In the evening, plaintiff’s husband was found lying in an alley so intoxicated as to be unable to help himself. He was carried by the police to the city lock-up, put in a bunk, and a fire built in the stove. An officer visited the lock-up about nine and half past two in the night, and on the last visit a *522physician was called, who, finding the patient unconscious, and the prison very cold, ordered him removed to a boarding-house near by. Plaintiff’s husband was so badly frozen as to totally disable him, and to require treatment for many months, and to necessitate the amputation of one of his legs. He was then aged twenty-eight years, and, prior to these injuries, was an able-bodied man, and able to earn from one dollar and fifty cents to one dollar and seventy-five cents per day in his business as a laborer. There is a conflict in the testimony as to whether plaintiff ’ s husband got any intoxicating liquors from defendant Jordan, or at his saloon, and whether the defendant O’ Conner knew that Jordan was selling intoxicating liquors, contrary to law, on the leased premises.

Following the order of the arguments, we first notice appellants’ complaint that the court erred in overruling the motion to set aside the verdict, and in rendering judgment thereon, because the verdict was not sustained by the evidence. Augustus Hurlburt testified that during the fire he and Mr. Judge went into Jordan’s saloon with others, and that he and Judge drank whiskey there out of the same bottle; that neither of them paid for it; and that Jordan and his bartender were there at the time. Hurlburt’s testimony, as given on a former trial of this plaintiff against one Boock, to recover for inj uries caused by the same intoxication, is in evidence, and is claimed to be in direct contradiction of that given on this trial, and that Hurlburt is not, therefore, entitled to credit. On the former examination, he testified to Judge’s drinking out of the bottle at the ladder, and to his drinking in Boock’s saloon. He was not asked as to his drinking in Jordan’s, and the only statement made in conflict with his testimony in this case is, that he did not see Judge take more than those two drinks. It was for the jury to say what credit, if any, should be given to Hurlburt’s testimony, and we. think, in view of the corroborating circumstances, that they were warranted in accepting it as true. Under the order from Gage, liquors were dealt out freely by Jordan on that *523occasion. True, be says only to tbe firemen, but tbe jury might well bave found that both Cage and Jordan meant by “firemen” those who wére engaged in trying to save Mr. Gage’s property. Tbe circumstances were certainly corroborative of tbe testimony, which, thus corroborated, so far sustains tbe verdict as that it should not be interfered with.

_ _ ‘ admissions:. instructions to jury. II. Tbe court says in its instructions: “It is admitted by defendant Jordan that at tbe time of tbe fire one James P. Gage said' to him to give tbe firemen a round, and be would pay for . . . v, T it: and it is further admitted by said Jor- *? **dan that, upon said direction of said Gage, be did, in bis saloon, furnish tbe firemen intoxicating liquors, for which said Gage subsequently paid him.” Appellants concede that Jordan so testified, but contend that it was not an admission, because not stated in tbe pleadings. These statements of Jordan’s in his testimony are not questioned, and it was not error to say to tbe jury that they were admitted by Jordan.

-instructions. III. Based upon these admissions, tbe court charged tbe jury that, if Jordan or bis bartender, acting upon tbe direction of Gage, furnished Judge intoxicating liquors, “or furnished it to others in his saloon, from whom tbe plaintiff’s husband obtained it, then it was a selling to said Gage and tbe plaintiff’s husband, substantially as alleged in plaintiff’s petition.” Appellants suppose a case where A sold to B, and B subsequently, upon bis own account, sold to 0, and contend that A is not liable for tbe sale to C. Such is not this case. It was submitted to the jury upon tbe theory that defendant was liable, if, upon tbe order of Gage, be furnished intoxicating liquors to plaintiff’s husband. Tbe instruction states tbe law correctly, as applied to tbe issues in this case.

*4.*The same. IV. Appellants asked an instruction to tbe effect that there was reo testimony tending to show that tbe liquors which Judge drank from the bottle at the ladder or elsewhere out of Jordan’s saloon were furnished by Jordan, and complains of tbe *524refusal to give this instruction. The court so instructed the jury as to the liquors drank from a bottle at the ladder. The only other drink that Judge was shown to have taken outside of Jordan’s saloon was at Boock’s, and there was no pretense that it was furnished by Jordan. If there was any error, it was in instructing that there was no evidence tending to show that the bottle of liquor was furnished by Jordan. The order of Gage, and Jordan’s acting upon it, and the fact that the bottle of liquor was taken to the place of the fire, and drank by men engaged in removing property and extinguishing the fire, surely had such a tendency; but, if the giving of this instruction was error, it was without prejudice to appellants. Other instructions refused were to the effect that, if Judge helped himself to "Jordan’s liquors with'out Jordan’s knowledge, or if he got the liquor by appearing in the guise of a fireman, that would not constitute a sale as charged. There was no testimony calling for such instructions, and, therefore, no error in refusing them.

Y. In instructing the jury as to the rules for determining the credibility of witnesses, they were told that if they found that a witness had testified falsely as to material matters, knowingly and intentionally, they *might*disregard his testimony altogether. Appellants contend that they should have been instructed that in such case the testimony *must*be disregarded in all matters, unless corroborated. The testimony is left with the jury, and it is for the jury to say what credit and weight, if any, shall be given to it. If, by reason of his having intentionally testified falsely as to one material matter, they believe him unworthy of credit as to all other matters, they should disregard the entire testimony; but if they believe any part of his testimony to be true, though not corroborated, it is their privilege to accept it. To say that in such case they must disregard the entire testimony would be to direct the jury to disregard testimony which they believe to be true. We think the instruction announces the *525correct rule. Wbart. Crim. Ev., sec 380; *State v. Wells,*46 Iowa, 662.

’ —; verdict: VI. The jury were directed, in the event they found for the plaintiff against the defendant Jordan, to-answer the following interrogatory : “Did. the defendant O’Conner have knowledge on. or before the second day of January, 1887,. that said Jordan was keeping for sale or selling intoxicating liquors in the saloon occupied by him?” The-jury returned into court with a verdict in favor of the plaintiff for fifteen hundred dollars, but without any answer to the interrogatory. The verdict was marked. “Piled” by the clerk, and passed to and read by the-court; and thereupon the court returned the verdict to-the jury, and directed them “to retire and consider further of their verdict, and return a verdict with answer to the special interrogatory submitted in the charge of the court.” Thereafter the jury returned into court the-same verdict, and an affirmative answer to the-interroga--tory. Appellants complain of the refusal of the court; to record the verdict as first returned, and of the court’s-charging the jury verbally to consider further of their verdict, and of the recording the verdict last returned. *Rowell v.*Williams, 29 Iowa, 210, is relied upon by-appellants. That was an action against three defend--ants to recover damages on account of personal injuries. The jury returned a verdict of seven hundred dollars-against one defendant (the city), and five hundred dollars against each of the other defendants. The court-said to them that they could not thus, divide upon their-verdict, but must find a gross sum against all of the-defendants, or in favor of all. The second verdict, returned was against the defendant city alone for eight hundred dollars, one hundred dollars of which was. remitted. This court held “the verdict, since the entry-of *remittitur,*is precisely as it was and would have been-but for the action of the court in directing the jury to-bring in a new or amended verdict. The city cannot complain that plaintiff lost the benefit of the ones-*526hundred dollars against the other defendants, for it is just what was first assessed, and not a cent more. Suppose there was a technical error, there was no possible prejudice.” The same can be said in this case. Appellants cannot complain, for they pay just what was first .assessed, and not a cent more. There was no error in requiring the jury to answer the interrogatory before receiving and recording their verdict.

,,__ aña wife •>and declarations. VII. Appellants, having shown that plaintiff’s husband was examined as a witness upon the trial of the case against Boock, offered to prove what he testified to as to having got liquor on the qay 0f the fire at Jordan’ s saloon. Appellee objected as immaterial, irrelevant and incompetent, and the objection was sustained. Appellants claimed this testimony to be admissible, on the grounds that the husband was in some sense acting as agent of his wife. They fail to point out, and we to observe, wherein the relation of principal and agent existed in the transaction •under consideration, He was not acting for her in pro■curing the liquors and becoming intoxicated. If it*be true, as stated, that she called him as a witness in the former trial, that did not obligate her to call him in this, ■nor commit her to the statements in his former testimony. It is a matter of common observation that husbands are not always favorable to the prosecution of ■cases like this by their wives. The testimony offered was incompetent, and, therefore, properly excluded. 'There was no error in admitting the testimony tending, to show that defendant furnished liquors to the firemen. It was for the jury to say who were included as firemen, .■and whether, in so directing, Gage did not have in mind all who were assisting in the preservation of his property, and whether Jordan did not so understand it.

There was no error in excluding the testimony •offered by defendants as to the purpose for which the ■saloon was open during the fire. That it was open does not create any liability; nor is it any defense that it was «open for the purpose of placing goods therein from the *527burning building, or permitting the citizens engaged in. suppressing the fire to go there and warm themselves.

We have examined the entire record with reference-to the numerous assignments of errors with care, and reach the conclusion that the judgment of the district court should be aeeirmed.