Coffee v. Dorwart

139 N.W. 776 | S.D. | 1913

GATES, J.

This is an action for damages for personal in-, juries. The allegations of the-complaint are as follows:

(1) That the defendants above named are the owners and have possession and control -of a 'certain building and premises described as lot 3 in block 3, original town (now city) of Kimball, in Brule county, state of South Dakota, with the appurtenances thereto belonging, and which said building was at the time hereinafter mentioned occupied and used by -said defendants to sell intoxicating liquors at retail and as a place of business commonly called a “saloon.”

(2) That the license under which said saloon is operated is taken out in the name of defendant S. E. D-or'wart, and that the latter is apparently in actual -charge and supervision of -said business ; but -that defendants J. H. Knight and J. W. Sanford have a silent interest in said business and in its profits, the latter supplying the money to procure the license aforesaid, furnishing the building and lot above described to transact said business in 'besides equipping said building with fixtures, and providing all the liquor stock used in connection with-and in the transaction of said saloon business. That said referred to silent interest held in said business by the defendants J. H. Knight and J. W. Sanford is concealed to the world, and this plaintiff is unable -to give the exact proportion of the same; but plaintiff alleges, upon information and belief, that there is a secret arrangement between said defendants whereby the two last mentioned agree to and do furnish the capital required, and defendant S. E. Dorwart agrees to and does assume the management of said business, and that the profits accruing from said business; if any, are thereafter respectively divided.

(3) The said building was negligently and carelessly built, in this: That there is a trapdoor opening into the cellar on the main saloon room floor of the same; that on or about the 21st day of October, 1911, said defendants, by their servants, opened said trapdoor, and, -well knowing the premises, did, on the afternoon of the date -aforesaid, negligently and wrongfully leave the said trapdoor open, -uncovered, unguarded, and unprotected, by means whereof the plaintiff, who is a blind man, and whose sightlessness was known to defendants and their servants, who' was then lawfully in said building by permission' and invitation of the defendants, then and -there necessarily and carefully passing along said saloon room, fell through the said trapdoor into the cement floored cellar.

Paragraph 4 sets forth nature of 'appellant’s injuries and the amount of his damages, and is followed by proper prayer and verification.

To the complaint defendants jointly interposed a demurrer, upon the ground that the complaint did not state fac-t-s sufficient to constitute a cause of action, which .was sustained. Plaintiff appeals. No brief has been filed by respondents.

[1] Appellants’ argument goes chieffy to show that the allegations of partnership were sufficient. As to the sufficiency of such allegations, we express no opinion. Under the general demurrer, in which all defendants join, the complaint, if good as to one defendant, is good as against all of them. Rochford v. School Dist., 17 S. D. 542, 97 N. W. 747. So far as -the issue raised by this demurrer is concerned, paragraph 2 of the complaint might have been -omitted.

[2] In other respects the complaint appears to contain all of ■the allegations necessary in a complaint of this kind. Sutherland, Code PL Pr. and Forms, §§ 4224,, 5.

The order sustaining the demurrer is reversed.