53 Ind. App. 24 | Ind. Ct. App. | 1912
— This action was brought in the Marion Circuit Court on a retail liquor license bond, executed by appellant Thomas Lawlor, as principal, and appellants Terre Haute Brewing Company and Maurice Donnelly, as sureties. The suit was instituted by the widow and minor children of Jesse Shatto, deceased, to recover damages for the loss of their means of support. It was alleged that decedent was killed by a switch engine while he was intoxicated, and that such intoxication was produced by liquor illegally sold to him by Lawlor or his agents.
The complaint was in one paragraph, and appellants answered in general denial. On motion for a change of venue the cause was transferred to the Hancock Circuit Court, where a trial was had before a jury, a verdict returned, and judgment rendered in favor of appellees in the sum of $1,500.
Appellants’ motion for a new trial was overruled by the trial court, and this ruling is the only error assigned on appeal.
It is asserted by appellants that the burden rested on appellees to prove that the unlawful sale of liquor, which caused or contributed to the intoxication of Shatto, Avas made by the agent or servant of Thomas Lawlor, and that there is no evidence tending to prove such fact. To make a prima facie case on this point, it is sufficient to show that a license was granted to him to conduct a saloon at the place Avhere the liquor was sold, and that a saloon was opened and conducted at that place, and that the sale was made by a person in charge Avithin the term covered by the license. The evidence tended to prove these facts and justified the inference that the place was being conducted under the license granted to LaAA-lor, and that the person in charge was his agent or employe.
In giving this instruction the court, no doubt, relied cn the authority of State, ex rel., v. Golding (1902), 28 Ind. App. 233, 60 N. E. 502. In that case a saloon license had been granted to two persons as partners, and the partnership opened and conducted a saloon at the place described in the license and under its apparent authority. The firm and its bondsmen were sued for civil damages resulting from a sale of intoxicating liquors unlawfully made during the time said firm was so operating the saloon, and a defense was attempted on the ground that the license granted to the partnership was Void for the reason that the statute requires that such licenses can be granted only to individuals and not to firms or corporations. The court held that by accepting the license and transacting business thereunder the firm had estopped itself and its bondsmen from denying its validity.
In this case, if Lawlor, while the holder of a saloon license, became a nonresident of the State, such license would ipso facto become void, and would' afford no protection to Ms agent in conducting the business; but if Lawlor in his absence left Glenn as Ms agent to conduct the business under authority and for his benefit, we would have no hesitancy in saying that the business so conducted would be under color of the license granted to Lawlor, and that both he and his bondsmen would be estopped from asserting the invalidity of the license on account of the absence of Lawlor from the State. If the instruction under consideration is intended to apply to this phase of the evidence, it is defective. The instruction warrants the jury in concluding that Lawlor and Ms bondsmen were estopped from setting up the invalidity of the license, without finding as a fact that Glenn was acting as his agent at the time he made the sale, or that Lawlor or his bondsmen had any knowledge that the business was then being conducted under color of the license granted to Lawlor.
Some other questions raised by the instructions are presented. To consider the objection to each of the instructions separately would unduly extend this opinion. Sufficient has been said to enable the lower court to avoid error on another trial of this case.
The judgment is reversed, with directions to grant a new trial.
Judgment reversed.
Note. — Reported in 99 N. E. 487. See, also, under (1) 23 Cyc. 326; (2, 3) 23 Cyc. 325; (4) 40 Cyc. 2586; (5) 38 Cyc. 1518; (6) 3 Cyc. 348; (7) 23 Cyc. 334; (8) 23 Cyc. 154; (9) 23 Cyc. 114; (10) 23 Cyc. 145; (11) 23 Cyc. 331; (12) 23 Cyc. 114; (13) 38 Cyc. 1718. As to statutory right of action against liquor seller had by relative of person sold to, see 48 Am. Dec. 625. Eor a discussion of furnishing liquor as the proximate cause of injury under civil damage acts, see 3 Ann. Cas. 59; 13 Ann. Cas. 200.