Engleken v. Webber , 47 Iowa 558 ( 1877 )

ON REHEARING.

Day, Cii. J.

Upon petition of plaintiff a rehearing was granted in this case. We have again carefully examined the question, a reconsideration of which was desired. Plaintiff complains of the portion of the former opinion which holds that the court erred in refusing to admit the records in the cases of plaintiff against Michael Ililger and Mathias Schultz, showing the recovery of judgments against them. The correctness of the opinion is assailed with much earnestness and with apparent plausibility.

The plaintiff, as stated in the foregoing opinion, commenced separate actions against the defendant, Weber, and against Meier, Weiss, Schultz and ITilger, the petitions covering substantially the same period of time, and making substantially the same allegations as to the character of the wrongs done and the injuries sustained.

.Now the defendants were either jointly or severally liable; if jointly liable, the collection of a judgment against one would be a satisfaction as to all; and the court in substance so instructed the jury. The court permitted the defendant to prove that John Weiss had confessed and paid to plaintiff a judgment of $100. The jury must have found that the injuries were so committed as not to render the defendant and John Weiss jointly liable, otherwise under the evidence and instructions their verdict must have been for the defendant. There was no evidence tending to show that the injuries were so committed that the defendant and Hilger and Schultz were jointly liable. Indeed, the allegations of the petition are such that under the doctrines of La France v. Krayer, 12 Iowa, 113, there could not be a joint liability. If the defendants are severally liable, under the doctrine of Jewett v. Wanshura, referred to in the foregoing opinion, several recoveries may be liad against each of them, but each can be held liable only for the damages which his own act occasioned. In an action against one party so liable, it must, therefore, be competent to show that he did not produce all the intoxication, neglect of business, spending of earnings, etc., etc., of which complaint is made. To this end it would be competent to show that some one else, during the period covered by the petition, sold liquor to plaintiff’s husband, obtained part of his earnings, caused some of the intoxication, and produced in part the neglect of business. Such proof would be competent, not for the purpose of exonerating the defendant for all that he did, but to show that the condition of things shown to exist was not all brought about by the acts of defendant, and of holding him liable only for the damages he occasioned. Suppose A sues B for permitting his animals to trespass upon and destroy a field of corn. A proves that upon divers occasions B’s animals were seen in his field eating and destroying his corn, and that there has been a total destruction of the crop. If no further evidence should be produced, the jury would be warranted in holding B responsible for the whole value of the crop. Might not B prove that C’s cattle trespassed upon the same crop, and contributed materially to its destruction? It is too clear for argument that he might do -so, not to obtain immunity for any damage that his cattle did, but to aid the jury in determining -whether they did all the damage that the evidence shows was done. If A had made an admission that C’s cattle trespassed upon the same crop for which B was sued, surely this admission would be competent evidence. Suppose that in fact A has sued C, and has recovered judgment against him for damage to the same crop. Is not this an admission that C’s cattle damaged the crop? And may not the judgment be introduced as evidence tending to prove such an admission? The case at bar is not at all different in principle. It must not be forgotten that, under the allegations of the petition, the injuries complained of were done in such manner that defendant cannot be jointly liable with others for the wrong done, but is responsible only for his own acts, and the consequences flowing therefrom. If Hilger and Schultz, during the period covered by the petition, sold intoxicating liquor to plaintiff’s husband, and thereby contributed to make him neglect his business, spend his earnings, etc., etc., the defendant .cannot be held responsible for their acts. Proof was introduced generally of the condition and habits of plaintiff’s husband. In the absence of any opposing proof, the jury might attribute his habits and condition solely to the acts of the defendant. It was the defendant’s right to introduce any competent testimony, tending, however slightly, to show that some one-else, in part, occasioned this condition and brought about these habits. The recovery of a judgment against another tends, as an admission of the plaintiff, to establish that fact. The fact that the judgment may, in part, have been composed of exemplary damages, is immaterial. The important fact is that at the instance of plaintiff there has been a judicial determination that, during the period covered by the petition, some one else actually aided in bringing about the condition complained of, and, as a consequence, that it was not all done by defendant. When such a condition is shown, then under the doctrine of Jewett v. Wanshura, the consequences of the combined wrongs cannot all be visited upon the defendant.

It is not meant in the foregoing opinion that these judgments are admissible for the purpose of mitigating the damages for the wrongs actually done by defendant. The meaning is that they are admissible to aid in the determination as to the actual extent of the wrongs done by defendant, to the end that he may be held responsible only for his own acts.

Ve are content with the conclusion heretofore announced, and it is adhered to.

Beck and Adams, JJ., dissenting.