55 Ind. App. 31 | Ind. Ct. App. | 1913
This is a suit by the State of Indiana on the relation of Caroline Bracken, against appellant to recover on the bond of a retail liquor dealer for damages caused by alleged illegal sales of intoxicating liquors to the minor son of the relatrix which resulted in his death.
Prom a judgment in favor of appellee, appellant has appealed and assigned as error that: “(1) The second paragraph of complaint does not state facts sufficient to constitute a cause of action against Illinois Surety Co. (2) The court erred in overruling appellant’s motion for peremptory instructions to the jury to find for appellant at the conclusion of evidence of relatrix in the cause. (3) The verdict of the jury is not sustained by sufficient evidence. (4) The verdict of the jury is contrary to law. (5) The court erred in overruling appellant’s motion for judgment in its favor on the answers of the jury to interrogatories, notwithstanding the general verdict. (6) The court erred in overruling appellant’s motion for new trial.”
The complaint was answered by separate general denials filed by appellant and James M. Scanlan. John Y. Scanlan was named as defendant but was not served with process, and did not appear. The gist of the first paragraph of complaint is that on July 7, 1908, a retail liquor license was duly issued to John Y. Scanlan by the board of/county commissioners of Marion County, Indiana; that appellant was his surety on the statutory bond given to secure said license, which was to run for the term of one year from June
Appellant contends that the case was tried on the second paragraph of complaint only, and that the answers showing that the license was issued to John Y. Scanlan and that he and James M. Scanlan were separate individuals, are in irreconcilable conflict with the general verdict. The record shows that the cause was submitted to the jury on both paragraphs of the complaint. The first paragraph proceeds on the theory that the license was issued to John Y. Scanlan and that the saloon was run by him and his agents under said license when the liquor was sold to decedent as alleged.
Note.—Reported in 103 N. E. 363. See, also, under (1) 31 Cyc. 720; (3) 38 Cyc. 1927-1929; (4) 38 Cyc. 1930; (5) 38 Cyc. 1926; (6) 29 Cyc. 747; (7) 23 Cyc. 324; (8) 3 Cyc. 348. As to liability of liquor seller and bondsmen under civil damage laws, see 48 Am. Dec. 625; 85 Am. St. 449.