American Surety Co. v. State ex rel. Holtam

90 N.E. 99, 46 Ind. App. 126, 1909 Ind. App. LEXIS 247

• Court: Indiana Court of Appeals
• Decided: December 15, 1909
• Docket: No. 6,611
• Status: Published

Opinions

Roby, J.

This is an action brought by the State.on the relation of the widow of Charles G. Holtam to recover on a liquor dealer’s bond executed by James Francis as principal .and the American Surety Company as surety,' A demurrer for want of facts to the complaint was overruled. The issue was formed by a general denial. The jury found for appellee, and assessed damages at $1,237. Appellant’s motion for a new trial was overruled and judgment rendered on the verdict.

■ The assignments not waived are that the court erred in its rulings on these two motions. The substance of the complaint, aside from averments as to the execution of the bond in suit, which is statutory (§§8319, 8355 Burns 1908, §§5315, 5323 R. S. 1881), and the issuance of license to Francis, is that the relatrix is the widow of said Holtam; that they were married in 1891, have one child, and the husband supported the family; that on January 28, 1906, “said day being then and there the first day of the week commonly called Sunday, ” said Francis sold beer and whisky to Holtam to be then and there drunk as a beverage; that Holtam was in a state of intoxication at the time, as Francis knew; that said liquors were drank by Holtam while in such state of intoxication in the saloon kept by said Francis; that on the evening of said day Holtam left said saloon (which is located at Kentland) and started to his home at Earl Park in a one-horse buggy; that he was intoxicated, by reason of drinking •said liquor; that on the next day he was found on the highway so helpless, frozen and chilled that he could not speak; that he was taken to his home and nursed by relatrix until February 12, when he died; that his death was caused by and from the effect of said liquors sold to him while in a state of intoxication; that Francis departed life on March 17 of «aid year.

1. The first and most plausible objection to the pleading is that the liability of the surety upon a retailer’s bond, based upon the making of illegal sales, is discharged by the death of the principal. The point is otherwise decided, in State, ex. rel., v. Soale (1905), 36 Ind. App. 73, but attention is called to the fact that a case cited in that opinion to this point (Moriarty v. Bartlett [1884], 34 Hun 272) was reversed on appeal. Moriarity v. Bartlett (1885), 99 N. Y. 651, 1 N. E. 794. The supreme court of New York held in that case, that a right of action to the wife injured “in means of support,” under a civil liability act did not abate. The judgment of the supreme court was reversed in a memorandum decision upon the authority of Hegerich v. Keddie (1885), 99 N. Y. 258, 1 N. E. 787, 52 Am. Rep. 25. This latter ease had to do only with the survival of an action by the administrator for death caused by negligence, and is in nowise authority upon the question presented in the case at bar. Tlie reasoning and persuasive authority of the case of Moriarty v. Bartlett (1885), 99 N. Y. 651, 1 N. E. 794, which is all it had in this State, are not destroyed by the subsequent action of the court of appeals. But adopting the language of Hegerich v. Keddie, supra, it may be said that “inasmuch as the statutes in this State are so different from our own, little analogy exists between the question there presented and the one under consideration.”

Our statute (§8355, supra) is as follows: “Every person who shall sell, barter, or give away any intoxicating liquors, in violation of any of the provisions of this act, shall be personally liable, and also liable on his bond filed in the auditor’s office, as required by section four of this act, to any person who shall sustain any injury or damage to his person or property or means of support on account of the use of such intoxicating liquors, so sold as aforesaid, to be enforced by appropriate action in any court of competent jurisdiction.”

2. When an applicant is granted a license to sell intoxicating liquor, and he accepts it by filing a bond eonditioned as the statute requires, he thereby contracts-with the State to compensate persons who are deprived by him of their means of support through sales made in defiance of the act. The complaint on the bond by a person who shows herself to be one of the class for whose benefit such statutory contract is made stands upon an entirely different footing from individual actions brought to recover damages in tort, irrespective of such statutes.

1. This action is not to recover damages for the death of the husband, but to recover damages caused by injury to the plaintiff’s means of support. Nelson v. State, ex rel. (1903), 32 Ind. App. 88; Stafford v. Levinger (1902), 16 S. Dak 118, 91 N. W. 462, 102 Am. St. 686, 1 Am. and Eng. Ann. Cas. 132 and note. These considerations require the reaffirmanee of State, ex rel., v. Soale, supra. The averments of the pleading show that the intoxicated condition caused by liquor unlawfully sold by Francis caused the death of the relatrix’s husband, and this is sufficient. Nelson v. State, ex rel., supra; Smiser v. State, ex rel. (1897), 17 Ind. App. 519.

3. The averment, that said Holtam had either fallen'from or was thrown out of the buggy in which he was riding, relates to a subsidiary fact, and does not make the complaint bad because of the alternative form. Whether he was thrown from or had fallen out of the buggy could not change the averred fact that he received injuries which resulted in death, and that they were caused by the use of liquor illegally sold. Wheeler v. Thayer (1889), 121 Ind. 64, 67.

It was not necessary that the relatrix either aver or prove that all the liquor which contributed to cause intoxication was sold by Francis, nor that it was all sold by him and drank by Holtam in the former’s saloon. Nelson v. State, ex rel., supra. The demurrer was correctly disposed of.

4 In support of the assignment, that the court erred in overruling its motion for a new trial, the appellant has discussed various instructions given to the jury. The court gave nine instructions at the request of appellee. It gave twenty-five at the request of appellant and thirteen of its own motion. The case was submitted in a manner most favorable to appellant, and no principle of law, to the benefit of which it was entitled, was omitted. Semblance of error is not ground for reversal. Judgments are set aside on appeal only for prejudicial error. No useful purpose will be served by a review of the points made. They have been examined and are not regarded as well taken.

It is also insisted that the evidence does not sustain the verdict. A careful reading of the evidence leads to the conclusion that the verdict is in entire accord with the proof.

The judgment is therefore affirmed.