Button v. Granberg

171 N.W. 822, 41 S.D. 583, 1919 S.D. LEXIS 53

• Court: South Dakota Supreme Court
• Decided: April 18, 1919
• Docket: File No. 4357
• Status: Published

Opinion

GATES, J.

Action upon the bond of a retail dealer in intoxicating liquor executed Juñe 25, 1915. The plaintiff -brought this action on behalf of herself and minor child, alleging, among 'other things, that she was the widow of one Albert G. Button, that her said husband died February 26, 1916, caused by the excessive drinking of intoxicating liquors sold by defendant, and that her husband was at the time of such sales an intoxicated person and a person in the habit of getting intoxicated.

In section 2839, Rev. Pol. Code 1903, some of the required conditions of such bond were that the principal would not sell intoxicating liquors “to any adult person whatever who is at the time intoxicated-, nor to any person in the habit of getting intoxicated when notified in writing that such person is in the habit of getting intoxicated.” By chapter 184, Laws 1909, the clause “when notified in writing,” etc., was eliminated.

Notwithstanding such change in the statute, and six years after the statute had- been changed, the county commissioners of Beadle county negligently permitted the filing of and approved this bond in the form promulgated by the Revised 'Code of 1903.

[1] There being no proof that defendant had been notified in writing that Button was in the habit of getting intoxicated, the trial court limited the proof to the issue whether defendant sold intoxicating liquor to Button at a time when he was intoxicated. Verdict and judgment were rendered for plaintiff in the-sum of $2,000. From the judgment and an order denying a new trial-defendant appeals.

[2] There was a conflict in the evidence as to whether defendant or his agents sold intoxicating liquor to Button, at a time when he was intoxicated, but there was sufficient evidence, if believed by the jury, to sustain plaintiffs side of the issue. In addition to the alleged insufficiency of the evidence to sustain the verdict, there are many assignments of error argued, the chief of which have been decided adversely to appellant in Garrigan v. Kennedy, 19 S. D. 11, 101 N. W. 1081, 117 Am. St. Rep. 927, 8 Ann. Cas. 1125, Palmer v. Schurz, 22 S. D. 283, 117 N. W. 150, Campbell v. Johnson, 25 S. D. 458, 127 N. W. 468, Dickmann v. Thomas, 36 S. D. 283, 154 N. W. 811, and Daudel v. Wolf, 30 S. D. 409, 138 N. W. 814.

In view of. the, present attitude of the state and nation with reference to the business of selling intoxicating liquor, we can perceive no useful purpose in detailing the different points argued in appellant’s brief. All of them have been considered. We believe that appellant had a fair and impartial trial, and that the order and judgment appealed from should be affirmed.