50 Ind. App. 617 | Ind. Ct. App. | 1912
— This was an action under §8355 Burns 1908, §5323 R. S. 1881, by relator Luther Sutton, a minor, on the bond of appellant Hughes, as a licensed saloon-keeper, to recover damages sustained by reason of his selling liquor unlawfully to Charles Sutton, father of relator. The substance of the charge in the complaint is that on July 4,1906, appellant Hughes sold liquor to Charles Sutton when the latter was intoxicated, which Sutton drank, and from the effects of which he became more thoroughly intoxicated, irritable, uncontrollable and unable to distinguish right from wrong, and that while in said state of intoxication, and wholly by reason thereof, he attempted to resist the deputy marshal of the town of Patriot, Indiana, in making an arrest, and was shot and killed by said deputy marshal, and thus relator was deprived of his sole means of support. Relator recovered judgment for $1,800 on trial by jury.
There was a Fourth of July celebration in progress in Patriot on the day Sutton was killed, and he, a citizen of Kentucky, had crossed the Ohio river and come to Patriot in the morning in order properly to celebrate the day. The evidence is uncontradieted that Hughes was doing a “land-office business” selling liquor in the back room of his saloon, that Sutton drank in that room many times with several different persons, and that Hughes sold to him liquor in the forenoon when he was intoxicated. There is also evidence that he sold him Hquor in the afternoon, and about 3 o’clock put him out of the room, because he was noisy and quarrelsome, and was- threatening to use a bottle of beer as a club over some of his companions’ heads. The evidence, taken as a whole, tends to show that between 9 a. m. and 3 p. m. he drank approximately fifteen or sixteen glasses and one bottle of beer, and four drinks of whisky,
The defense attempted to show the existence of ill-feeling between Sutton and the deputy marshal Smith, who shot
Smith testified that he had been warned before the Fourth that some Kentuckians had been talking for two weeks that if the officers undertook to arrest any one from Kentucky they would put the officers in the river. However, it was shown that the persons concerned in this lived in an entirely different neighborhood from Sutton, and it was not shown that he had any communication with them, or any connection with their alleged plot. There remains the testimony of one witness, however, who said that Sutton told him before he crossed the river the morning of the Fourth, that if the officers attempted to arrest any Kentucky boys he would put them in the river. The testimony of this witness is not consistent on its face, and counsel for plaintiff at the trial argued that it was unreasonable, untrue and manufactured, and the jury in weighing his testimony may well have rejected it wholly.
The evidence, a portion of which has been related, is sufficient for the jury to find that Sutton at the time he was shot was so much intoxicated that he had lost control of himself, and for that reason, and no other, resisted the officer.
The Standard Dictionary defines “intoxicated” as
However, this is not necessary under our decisions. “Under tbe act it is necessary that two facts should concur besides tbe sale or gift of tbe liquor by tbe defendant to constitute a cause of action, to wit, intoxication resulting from its use in whole or in part, and tbe loss of tbe means of support by tbe plaintiff in consequence of sucb intoxication. Tbe statute requires nothing more. * * * Tbe statute makes no distinction whether tbe loss of tbe means of support is tbe direct or remote result of tbe intoxication. It only requires that it should be established that tbe loss of tbe means of support is tbe result of sucb intoxication. * * * The statute provides for a recovery by action for injuries to person or property or means of support, without any restriction whatever, and * * * both direct and consequential injuries were included; * * * it is evident that tbe legislature intended to go, in sucb a case, far beyond anything known to tbe common law, and to provide a remedy for injuries occasioned by one who was instrumental in tbe producing or who caused sucb intoxication. * * * Tbe question was not whether tbe death of tbe deceased was tbe natural, reasonable, or probable conse
Generally speaking, men, if left to their own choice, would rather obey the law than to violate it. From all the evidence produced at the trial of the cause in the court below, we are fully supported in holding that the conditions shown to exist at Patriot on that eventful Fourth of July were not an expression of the true life and character of that community, but that such conditions were rather the result of the unlawful sales of intoxicating liquor, as charged in the complaint, for which appellants must respond in damages to appellee.
The evidence is sufficient to support the verdict, and the judgment is affirmed.
Note. — Reported in 98 N. E. 839. See, also, under (2) 23 Cyc. 324, 326; (3) 23 Cyc. 314, 326.