50 Ind. App. 475 | Ind. Ct. App. | 1912
— Appellee Retta Souers is the wife, and the other appellees are the children of Thomas Souers, and this action was brought by the State, with said appellees as relators, to recover on a saloon-keeper’s bond, executed by John S. Brown as principal and appellant as surety.
The action is based on §8355 Burns 1908, §5323 R. S. 1881, and the breach or violation of duty by the principal of the bond relied on, as creating the liability alleged in the complaint, is the unlawful sale of liquor to said Thomas Souers at a time when he was intoxicated, resulting in a loss to the relators of their means of support.
A trial by jury resulted in a verdict for appellees in the sum of $1,500.
It is conceded by appellant that the complaint follows that of Homire v. Halfman (1901), 156 Ind. 470, 60 N. E. 154, and as no objection to its sufficiency is urged, we need give it no further notice.
The first question presented by this appeal is the alleged error of the trial court in sustaining a demurrer to appellant’s first plea in abatement. The substance of this plea is that at the time appellees commenced this action, appellee Retta Souers filed a suit on a similar bond executed by another saloon-keeper, viz., Harvey Gill, as principal, and appellant as surety thereon, and therein alleged the same grounds for recovery which form the basis of the complaint at bar; that said suit was venued to the Wells Circuit Court, and was there pending at the time this cause came up for trial.
For the reasons indicated, the demurrer to the first plea in abatement was properly sustained, as was also the demurrer .to appellant’s third paragraph of answer, which presented the same defense as a bar to this action.
The ruling of the court below in sustaining a demurrer to this plea presents the second error relied on.
Appellant urges that the local option law of 1908, supra, repealed or suspended the act of 1875 (Acts 1875 [s. s.] p. 55, §8355 Burns 1908), under which the bond sued on was issued, and that any suit based on said bond would abate because of the repeal or suspension of the law.
Section 12 of said act of 1908 provides: “Nothing contained in the provisions of this act shall affect, amend, repeal or alter in any way the act entitled ‘An act to better regulate and restrict the sale of intoxicating, * * *' liquors,’ ***** approved March 11, 1895, nor the act to amend section nine of the above mentioned act approved February 15, 1905, nor of any law or ordinance which prohibits throughout any township, ward or any residence district the sale of intoxicating liquors, but this act shall be deemed additional and supplemental thereto.” Although this §12 does not expressly mention the act of 1875 as among the acts expressly saved from repeal yet the closing language of said section indicates that the intention of the legislature was that the act of 1908 should be additional and supplemental to the existing law on the same subject.
But assuming, without deciding, that the act of 1908, supra, had the effect of repealing the act of 1875, stipra, it in noway deprived appellees of their right to maintain this action.
Section 248 Burns 1908, §248 R. S. 1881, provides that “the repeal of any statute shall not have the effect to release
Appellant relies on the case of Taylor v. Strayer (1906), 167 Ind. 23, 78 N. E. 236, 119 Am. St. 469, to take this action out of the operation of the section of statute last quoted. That ease involved the establishment of a drain, and while ‘the cause was pending in the lower court, the General Assembly passed a new drainage law, and repealed all prior drainage statutes. On appeal, counsel for appellees attempted to invoke the saving provisions of the statute above quoted, but the Supreme Court said, at page 30: “It is manifest that §248, supra [§248 Burns 1901, 248 R. S. 1881], has no application to any feature of this case, but only relates to penalties, forfeihires and kindred liabilities.” (Our italics.)
In this connection we may remark that, for the purpose of this appeal, appellant is in no position to insist that the “liability” on the bond herein sued on is not akin to a “penalty,” because a large portion of one of the pages of its brief is taken up with propositions and authorities cited to the effect that the recovery which the statute authorizes in cases of this kind is penal in character.
Again §243 Burns 1908, §243 R. S. 1881, provides: “No rights vested, or suits instituted, under existing laws shall be affected by the repeal thereof, but all such rights may be asserted, and such suits prosecuted, as if such laws had not been repealed. ’ ’
This is a suit on a bond. The condition of the bond, for the breach or violation of which the action was brought, is charged to have been broken at a time previous to the enactment of the local option law of 1908, and the liability for such breach had therefore accrued before the passage of such
The sections of statute and authorities cited justified the ruling of the court below on the demurrer to the second plea in abatement, and to the second paragraph of answer which raised the same question.
With its general verdict the jury returned answers to interrogatories, and a motion was made by appellant for judgment thereon, which was by the court overruled. This ruling presents another alleged error relied on and urged by appellant.
The jury in its said answers found that when Thomas Souers reached Troy City, where the shooting occurred, he went to a store to return a borrowed overcoat; that there was no evidence that he went to said store for any other purpose, and that he did not know that Benjamin Thomas was in the store when he entered it to return the borrowed overcoat. Other interrogatories show some of the details of the quarrel and shooting, but in answer to the twenty-ninth interrogatory, the jury expressly found that Souers did not shoot and kill Thomas in self-defense.
The answer was not responsive to the question asked. The question asked simply called for a “yes” or “no” answer as to whether Souers was making any threats against Thomas, and did not ask for a statement of what the threats were. The objection made to the question was that “the defendants and neither of them are bound by the statement made to another witness in their absence.” There was no objection to the answer, and no motion to strike it out as not being responsive to the question. It is questionable, therefore, ■whether this ground of the motion for new trial is presented by the record. Continental Casualty Co. v. Lloyd (1905), 165 Ind. 52, 65, 73 N. E. 824; Vickery v. McCormick (1889), 117 Ind. 594, 596, 20 N. E. 495.
But, assuming that the question is properly presented, we are of the opinion that no error was committed in admitting the evidence.
This court in the ease of Berkemeier v. State, ex rel., (1909), 44 Ind. App. 1, 6, 88 N. E. 634, 636 said: “Three
It would seem that this evidence was admissible as tending to prove the second element, supra, of the cause of action, but even if it were not admissible for such purpose, we think it was proper as affecting the third element.
The section of the statute on which the action is based makes the damages to be recovered depend on the injury to the plaintiffs’ means of support. Berkemeier v. State, ex rel., supra; American Surety Co. v. State, ex rel. (1910), 46 Ind. App. 126, 90 N. E. 99, 91 N. E. 624; Nelson v. State, ex rel. (1903), 32 Ind. App. 88, 90, 69 N. E. 298; Homire v. Halfman (1901), 156 Ind. 470, 474, 60 N. E. 154.
Applying these observations to this case, the importance and competency of the evidence objected to, we think, becomes apparent. Appellant-defended this action on the theory that Souers killed Thomas in self-defense, uninfluenced by the effect of any liquor sold to him. The court below, properly, we think, allowed this proof, and allowed appellant to go behind the judgment of conviction, which was prima facie evidence that the killing was not in self-defense. Souers himself testified that he did the shooting in self-defense. If this evidence of self-defense, was proper, and appellant is insisting that it was, then we think it follows necessarily that the admitted evidence of which complaint was made was proper as tending to rebut such theory. This evidence was clearly admissible in the trial of the criminal case for the purpose of showing intent, malice, motive or disposition and frame of mind on the part of Souers in the commission of the crime for which he was imprisoned, and which resulted in the loss of the support herein sued for. Parker v. State (1894), 136 Ind. 284, 286, 35 N. E. 1105; Wheeler v. State (1902), 158 Ind. 687, 698, 63 N. E. 975; Reed v. State (1850), 2 Ind. 438; State v. Brown (1905), 188 Mo. 451, 87 S. W. 519; Glass v. State (1906), 147 Ala. 50, 55, 41 South. 727.
This evidence being proper and competent to go to the jury trying the criminal cause for its consideration in determining whether Souers in fact acted in self-defense when he
The deposition of Souers had been taken while he was in the penitentiary, and appellant asked the witness, in substance, if he had not stated in his deposition that he was scared and thought he (Thomas) was very drunk himself, and might kill him. An objection to this question was sustained. The only part of the answer of the witness in his deposition which could be said to contradict and impeach his testimony given at the trial was that' part of the same which attributed his fear of danger to Thomas’s being drunk,, while at the trial his statement was that he, the witness, was drunk.
The record discloses that the witness afterwards answered this part of the question. No available error on this question is therefore presented by the record.
A saloon-keeper who sells intoxicating liquors in violation of §8355 Burns 1908, §5323 R. S. 1881, is, under the authorities hereinbefore cited, liable personally and on his bond to those injured in their means of support for all damages caused directly or remotely by such sales.
In view of the theory of defense, and the evidence in this case, we think the instruction given was proper and as favorable to appellant as such authorities-warrant.
It is urged against this instruction that it omits the element that the sale of liquor must have been unlawful, and that it treats the “claims of Souers as claims”, not as evidence, and assumes that if the killing were justified from the evidence the defendant would still be liable for the miscarriage of justice and the wrong suffered by Souers from his conviction.
In answer to the first objection it is sufficient to say that the instruction does not attempt to state the entire law of the case, but only the law applicable to one branch thereof. The evidence of Souers was that he claimed to have acted in self-defense, and the court in the instruction gave appellant the benefit of such claim.
"We think the instruction is not open to the objections urged against it.
No sufficient ground of objection is pointed out to the other instructions given.
The refusal to give certain instructions which it tendered is next urged by appellant, viz., error in refusing to give the second, fourth and fifth.
Though it be conceded that in law the acts of the agent are the acts of the principal, yet under the evidence in this ease, the instruction as tendered would have been necessarily misleading and harmful to appellees.
The refusal to submit certain interrogatories is next urged.
We cannot agree with this contention. The record of the conviction of Souers in the criminal case was introduced in evidence, and, in addition, there was some evidence from which the jury may have inferred that Souers was not wholly without fault, and that, but for his condition resulting from the liquor unlawfully sold to him, when intoxicated, by Brown, or his agent, he (Souers) would never have shot and killed Thomas, who was his brother-in-law.
We find no error in the record, and the judgment is therefore affirmed.
Note. — Reported in 98 N. E. 829. See, also, under (1) 31 Cyc. 179; (2) 31 Cyc. 180; (3) 23 Cyc. 320; (4) 31 Cyc. 181; (5) 23 Cyc. 310; (6) 38 Cyc. 1926; (7) 23 Cyc. 324; (8) 1913 Cyc. Ann. 2571; (9) 3 Cyc. 337; 38 Cyc. 1352; (10) 38 Cyc. 1466; (11) 1913 Cyc. Ann. 2572; (12, 13) 23 Cyc. 331; 1913 Cyc. Ann. 2573; (14) 23 Cyc. 331; (15) 23 Cyc. 320, 321; (18) 38 Cyc. 1640; (19) 29 Cyc. 951; (20) 3 Cyc. 348. For a discussion of furnishing liquor as the proximate cause of injury under civil damage acts, see 3 Ann. Cas. 59; 13 Ann. Cas. 200. As to pendency of prior suit in state court as plea in abatement, see 84 Am. Dec. 453. As to pendency of suit in a federal court as plea in abatement in state court, and vice versa, see 82 Am. St. 587. As to the liability of a seller of intoxicants for the acts of persons becoming intoxicated see 85 Am. St.
