Benhoff v. Weaver

6 Ohio Cir. Dec. 361

• Court: Lucas Circuit Court
• Decided: March 23, 1895
• Status: Published

Opinion

HAYNES, J.

(orally).

. A petition in error is filed to reverse the judgment of the court of common pleas, which was a judgment against the plaintiff in error. The plaintiff in error, who was plaintiff in the court of common pleas, seeks to enforce upon certain property, that is situate in Washington township, Lucas county, Ohio, the amount of a judgment of some $250, which the plaintiff had recovered before that time against Martin Weaver, who was the husband of Persilvia Weaver.

It appears from the record that that judgment was obtained by Barbara Benhoff against Martin Weaver, for that he had sold intoxicating liquors to the husband of Barbara Benhoff, causing his intoxication, etc.; that the sale was in violation.of law; that that judgment remained unpaid and unsatisfied. It further appears from the record that in that original suit Persilvia Ann Weaver had also been made a party defendant with Martin Weaver, but upon the trial of the cause the jury had found in favor of Persilvia and against Martin, and the judgment was in favor of Persilvia Weaver upon the issues joined and against Barbara Benhoff, while as between Barbara Benhoff and against Martin Weaver the issues were found in her. favor, and she recovered a judgment against Martin for the sum named.

In this action it is set up and alleged that Barbara Benhoff was the owner of the premises upon which the building stood in which the liquors were sold for which the judgment had been obtained; and it is claimed that under and by virtue of section 4864, Revised Statutes, the plaintiff had the right to subject that property to the payment of that judgment, although the property stood in the name and was in the name of Persilvia Weaver, and not in the name off Martin.

Section 4364 provides: If a person rent or lease to another, any building or premises to be used or occupied, in whole or in part, for the sale of intoxicating liquors, or permit the same to be so used or occupied, in whole or in part, such building or premises so leased, used or occupied, shall be held liable for, and may be sold to pay, all fines, costs and damages assessed against any person occupying the same; proceedings may be had to subject the same to the payment of any such fine and costs assessed or judgment recovered, or any part thereof' which remain unpaid, either before or after execution issues against the property of the person against whom such fine and costs or judgment have been adjudged or assessed, etc.

Upon the testimony in the 'case, there is no evidence of any lease of the premises from Persilvia Weaver to Martin Weaver. ' The clause under which it is sought to hold Persilvia Weaver in favor of that judgment, and to subject the property, is that she permitted the same to be used or occupied for the sale of intoxicating liquors. The testimony shows generally, in substance, that the land upon which this building was situated was the property of Persilvia by inheritance; that she received it from ancestors; and that the building that was put upon it, or some portion of the building, was put on there with the money of Martin. There had been a little grocery store carried on there for some time. On the premises adjacent or near by was the postoffice, and one or the' other of these parties had charge of that postoffice. I'suppose the husband was postmaster, and the wife had charge of the postoffice and ran it. Martin desiring to •carry on the sale of liquors made an addition to the building in which he eventually carried on the sale of liquors for the period of at least over a year, when he leased the premises. During this time these events occurred for which this suit was brought and in which judgment was obtained.

The wife in her own behalf denies that this sale of intoxicating liquors was ■ever carried on there by her permission or her consent; on the contrary, she ■claims that she protested against it from the very commencement, and repeatedly protested against it, and never consented to it; but that her husband, iistening to the persuasions of other parties, decided that he would commence to carry on the •sale of liquors, and did so. She says that from time to time certain women in the neighborhood protested that they ought not to carry on the business, and she says that she had endeavored to have it stopped. It appears in evidence that the ■plaintiff here, Mrs. Benhoff, called upon her, and claimed that her husband was •drinking at that place, and drinking too much; that on a certain day she called there and said that her husband was then at the grocery, drunk. Mrs. Weaver «ays that she went down there and found him about the premises. He was not ■so drunk but that he could walk about. She told him at that time to leave,, and .keep away; that she didn’t want him about the premises. There is some,little evidence tending to show that at some time Mrs. Weaver had been seen handing ■out a glass of liquor there herself. On this trial she said she did hand out a glass to Benhoff, but she explains that. She denies that she ever did sell intoxicating liquors there. She says her husband always told her to keep out of that place. It is in evidence that she was about the premises, and there can be no ■doubt but that she knew that intoxicating liquors were sold there.

The question is, whether she permitted that sale voluntarily or wilfully, so that her property would become subjected to the payment of this judgment. In 49 O. S., 447, Mullen v. Peck, this statute is discussed at considerable length, and the right of the plaintiff to maintain an action against those who permit the sale of intoxicating liquors is maintained by the supreme court. ' In that case the building had been leased originally by the owner to a certain party, and the •owner died, and the property was left to the widow for life and at her death, the Temainder over to the children. Suit was brought to subject the property to the payment of a judgment that was obtained for the unlawful sale of liquor by the tenant to her husband. The supreme court held in that case that the life estate might be held subjected to the judgment, but not the remainder over belonging to the children. It was shown that the lease had not been made by these parties, and that the life tenant had never taken any step to avoid the old. lease. But the court below held in this case at bar that the wife had done all that she was required to do; or, in other words, that she had shown by her evidence conclusively that she had not permitted the sale of the liquor, and that she had by a preponderance of the evidence sustained that proposition. It was urged, of course, that she ought to have done something more— should have resorted to proceedings in law to have compelled her husband to stop. Now we Tiave discussed this matter at some length and have endeavored to take a just view of it as between the plaintiff and the defendant; and while we can see that .a defense of that kind may be the subject of collusion between the husband and wife, yet we think each case must stand upon its own facts, and be decided upon its own facts; and we think that we ought not to say as a matter of law that the wife is bound to have recourse to any legal remedies in order to prohibit the husband from making a sale of liquor under these circumstances. If she refused to assent to it, if she objected to it on all proper occasions, we think she has done .all as a wife that she is required to do. To hold that she was bound to commence, for instance, an action of injunction against her husband, or an action to oust him from the possession of the premises, would simply be stirring up lawsuits between husband and wife, which is not the purpose or polity, at least, of the laws of the state of Ohio. The court having found that there was no collusion between the parties, and that the wife was honest and sincere in her objections and truthfully stated the facts when she said that she did object at all times to the sale of the liquor, it found that no permission was given by her. We think upon these facts we should affirm the judgment of the court of common pleas. That is to say, under the rules governing a court of error in reviewing the facts of a case, we are not justified in holding that the court of common pleas erred in its finding of facts upon the evidence.

P. C. Beard, for Plaintiff in Error. /. E. Pilliod, for Defendant in Error.

The judgment of the court of common pleas will therefore be affirmed.