121 Minn. 450 | Minn. | 1913
The complaint alleges, in substance, the following facts: Defendant’s intestate, Axel Pakkala, was a licensed saloon keeper in the city of Virginia, this state. Preceding the issuance of his license,, and in compliance with the requirements of the statutes in such cases; provided, Pakkala, as principal, and defendant, Bankers Surety Company, a corporation, as surety, duly executed and caused to be filed: in the office of the city clerk the saloon bond required by section 1524,, Tt. L. 1905, as amended by chapter 246, p. 379, Laws 1905, and it; was accepted and approved by the proper city authorities. The1 license so issued covered the period from September 3, 1911, to September 3, 1912. During the night of December 23, and until, about four o’clock in the morning of December 24/ 1911, Pakkala; kept his saloon and place of business open and therein sold intoxicating liquor to numerous persons there present, including one Drexler,. to such an extent that said Drexler became badly intoxicated and ak about four o’clock in the morning of said December 24, Drexler, in a “drunken, crazed condition, caused by the intoxicating liquor” furnished him by said Pakkala, drew a revolver from his pocket and; commenced shooting the same indiscriminately about the saloon, andi thus shot and killed one Jonas Koski, the husband of plaintiff.
The complaint further alleges that Drexler was an intemperate person, and that the sale of the liquor to him by Pakkala, as already stated, was a violation of law, and a breach of the conditions of the saloon bond; that such violation of the law was the cause of Drexler’s intoxication, the cause of the indiscriminate shooting of his revolver,, and the direct and proximate cause of the death of plaintiff’s husband. A copy of the saloon bond was attached to and made a park of the complaint. Subsequent to the death of plaintiff’s said hus~
Defendants interposed separate general demurrers to the complaint, and joined in an appeal from an order overruling the same. We are of opinion and so hold, that the complaint states a eause of action against both defendants and that the demurrers were properly overruled.
“The surety or sureties on any such bond shall be liable for any (damage or injury caused by or resulting from the violation of any of ithe conditions thereof, in any and all cases where the principal upon such bond may be liable. The amount specified in such bond is declared to be a penalty, the amount recoverable to be measured by the .actual damages.”
The act of 1911 provides:
“Every husband, wife, child, parent, guardian, employer, or other ■person, who shall be injured in person or property, or means of •support, by any intoxicated person, or by the intoxication of any person, shall have a right of action in his or her own name, against any •person who shall by illegally selling, bartering, or giving intoxicating liquors have caused the intoxication of such person, for all damages (Sustained. 'x‘ * *”
The saloon bond is required for the purpose of indemnity to those who are injured in consequence of unlawful sales of liquors by the licensee. It constitutes a contract on the part of the licensee and surety that unlawful sales will not be made, and a violation thereof inures to the benefit of injured third persons. Though the act of the person who caused the death of plaintiff's intestate in the case at bar was a tort, a crime, the act of Pakkala, the saloonkeeper, in causing him, by the unlawful sale of liquor to him, to become intoxicated, thus bringing about a condition on his part which caused the commission of his wrongful act, was a violation of the bond, a breach of the contract; and herein is the basis and foundation of plaintiff’s action. The action is not for the injury to her husband, which the unlawful sale brought about, but for an act, whether in itself a tort 'or not, amounting to a breach of the covenants of the bond, and which resulted in an injury to her, by depriving her of her means of support. Since, therefore, the wrongful act of Pakkala was a breach, of the contract, and an injury to plaintiff distinct from the injury to her husband, a cause of action arising therefrom survived and the action may be prosecuted against the representative of Pakkala’s estate, precisely as for the breach of any other contract. State v. Soale, 36 Ind. App. 73, 74 N. E. 1111; Cullinan v. Burkard, 93 App. Div. 31, 86 N. Y. Supp. 1003; American v. State, 46 Ind. App. 126, 91 N. E. 624; Garrigan v. Thompson, 17 S. D. 132, 95 N. W. 294. The wrongful acts of Pakkala and Drexler do not constitute the foundation of the action, but serve only to prove and establish the breach of the covenants of the bond.
Nor is it necessary, as a condition to the right of private suit on the bond, that the action be preceded by the conviction of the licensee.
The remark found in the opinion in the Larson case, supra, which ■seems to take the view that such conviction is essential to the right of recovery, was not necessary to a decision of that ease, and was not intended as a definite declaration of the law on the subject. The provisions of the statute quoted to the effect that the surety on the bond "shall be liable for any damage or injury caused by or resulting from the violation of any of the conditions thereof, in any and all cases” where the principal would be liable, in connection with the provisions of the act of 1911, above referred to, make it clear that the legislature intended the bond to stand as indemnity for private persons, as ■well as for the benefit of the state. We so hold.
This covers all that is necessary to be said, and results in an affirmance of the order appealed from.
Order affirmed.