191 Ind. 595 | Ind. | 1921
This was an action on a retail liquor license bond by the State of Indiana upon the relation of appellees, the widow and children of William T. Gary, deceased, against appellants to recover damages for loss of support.
It appears from the first paragraph of the complaint that appellant, Alvin Booker, was duly licensed and engaged in the sale of intoxicating liquor at White Rose in Greene county; that he executed the usual retailer’s liquor bond with appellant, The Massachusetts Bonding and Insurance Company as surety thereon; that on January 13, 1914, Booker unlawfully sold intoxicating liquor to Gary who was then and there, as Booker well knew, in a state of intoxication, and who, on drinking this liquor, became crazed and unconscious of his surroundings, and while in this condition, to the knowledge of Booker, he attempted to walk home and in so doing wandered upon the railroad tracks of the Vandalia Railroad Company where he was struck by one of its trains and killed.
The second paragraph states substantially the same
By a demurrer to each paragraph of the complaint, it was urged that plaintiffs. had no legal capacity to maintain this action, and that neither paragraph, separately considered, stated facts sufficient to constitute a cause of action. Answer in denial, trial, verdict and judgment on the verdict for $3,500. The overruling of the demurrer to each paragraph of the complaint and the overruling of appellants’ motion for a new trial, are the only errors assigned.
The only specifications in the motion for a new trial relied on by appellants for a reversal of the judgment, as appears from their brief under the heading of “Points and Authorities,” require us to consider instructions Nos. 2 and 3 given by the court at the request of plaintiffs; instruction No. 7 given by the court on its own motion; the court’s refusal to give Instruction No. 10 requested by the bonding company; and the admission in evidence over appellants’ objection copies of certain records and other instruments as certified by the auditor of Greene county.
The record affirmatively shows that instruction No. 10 was given by the court. In fact, all of the instructions, eighteen in number, tendered by and on behalf of the bonding company, were given by the court except instruction No. 13. The questions discussed, with reference to the asserted objectionable instructions, pertain to the theory of the defense which was, that prior to the alleged sale of intoxicating liquor, Booker had sold his saloon including his stock of liquors, furniture and fixtures to one Callahan who had taken possession of the same and was running it on his own account, and
It appears from the undisputed testimony of Booker, that prior to the alleged unlawful sales of liquor to Gary, he agreed to and did sell his stock of liquors, his furniture and fixtures to Callahan; that he turned over to Callahan the keys to the building and put him in possession of the place described in his license, knowing that Callahan intended to continue the saloon business at that place. There was evidence also tending to show that as a part of the bargain Booker agreed to transfer his license to Callahan, which was eventually done in the manner prescribed by statute, but not until after the death of Gary. There was also evidence from which the jury might properly have inferred an agreement between Booker and Callahan that the latter should operate the place as Booker’s agent and under Booker’s license until such license could be legally transferred to Callahan. That Booker frequently waited on customers from the time of the claimed property sale until the day of the alleged unlawful sale of liquor, and that one Hudson was Booker’s bartender prior to the asserted sale to Callahan, and thereafter continued in the business as bartender and sold the liquor to Gary.
As pertinent to the facts and the evidence from which the inferences mentioned might readily have been drawn, the court by instruction No. 2 charged the jury, in effect, that if the place was conducted as a saloon by Callahan under Booker’s license, and prior to the transfer thereof, with the full knowledge, permission, con
The objection to these instructions collectively was, that they informed the. jury as a matter of law that a saloon keeper could not sell his fixtures and stock without first getting the consent of the board of county commissioners to sell the license to the same purchaser. We are not persuaded that the jury would so understand these instructions. It is apparent from the language used that the jury were thereby informed that a sale depending upon the action of the board of commissioners transferring the license of Booker to Callahan, would, in law, not be such a sale as would relieve the seller from the responsibility of the acts of those by bim placed in charge of the business under his license prior to the consummation of the sale.
The objection to instruction No. 7 presents the same question as that presented by the demurrer to the complaint. Having held that the complaint stated a cause of action, it follows that this instruction was properly given.
Appellants also earnestly insist that the trial court erred in permitting plaintiffs, over their separate and several objections, to introduce in evidence as a part of plaintiffs’ original case, exhibits “A” and “B.”
Exhibit “A” purports to be a certified; copy of an application to the board of commissioners of Greene county, .Indiana, by Alvin Booker for a renewal of a liquor license, dated August 4, 1913, and a copy of a retailer’s bond also dated August 4, 1913, to which .is attached the following certificate:
“I, GEORGE E. KIDD, Auditor in and for the County of Greene, State of Indiana, hereby certify that the foregoing is ,a true copy of the Bond and Application for Renewal of Liquor License of Alvin Booker, as shown by the records in the Auditor’s office of Greene County, Indiana. In witness whereof I have hereunto set my hand this 19th day of February, 1915.
(Seal)
GEORGE E. KIDD, Auditor, Greene County, Ind.”
Exhibit “B” was a copy of a renewal of a retailer’s liquor license granted by the board of commissioners of Greene county, Indiana", to Alvin Booker for one year from August 4, 1913, given under the hand of the auditor of Greene county with the seal of the board of commissioners affixed thereto. The certificate to this exhibit follows:
“I, GEORGE E. KIDD, Auditor in and for the' County of Greene in the State of Indiana, hereby certify that the within is a true copy of the renewal of license issued to Alvin Booker on the 4th day of August, 1913. This 19th day of February, 1915.
GEORGE E. KIDD, Auditor Greene County, Ind.
By Daniel A. Bynum, Deputy.”
The grounds of objection to the introduction of this exhibit were “We object to the introduction of Exhibit ‘B’ for the reason that it purports to be a copy of a license, and we know of no law that authorizes the Auditor to keep a copy of the license on file in his office, and he is only authorized to certify to the records which the law requires him to keep, and the original license itself would be the proper dvidence.” The trial court then said: “Are there any other objections? Any other statements?” Counsel for appellants replied: “I think our objections cover them.”
Appellees in rebuttal introduced in evidence over appellants’ objection exhibit “C.” This exhibit includes a copy of the following papers and orders of the board: (1) A copy of a,notice given by publication, that the applicant’, Oral Callahan, will apply to the board of commissioners at its January term, 1914, “for permission
(5) “IN COMMISSIONERS’ COURT.
JANUARY TERM.
In the matter of the Application of Oral Callahan to purchase liquor license.
2” day — continued.”
(6) “IN COMMISSIONERS’ COURT.
MARCH .TERM.
In the matter of the Application of Oral Callahan to purchase liquor license, filed Jan. 5”, 1914.
1” day — This cause having been continued from the January term, the evidence is now heard, application to purchase granted and the license ordered issued and transferred to applicant.”
“I, GEORGE E. KIDD, Auditor in and for the County of Greene and State of Indiana, hereby certify that the foregoing is a true and complete copy of the proceedings in the above named cause, as shown by the record in the Auditor’s office of Greene County, Indiana. Signed this 1” day of May, 1917.
GEORGE E. KIDD,
(Seal) Auditor, Greene County, Ind.”
The objection to the introduction in evidence of exhibit “C,” in substance, was that the same was not properly and sufficiently certified by the auditor of Greene county in that each copy set forth in the exhibit, separately and severally, was not covered, separately and severally, by the auditor’s certificate.
On June 17, 1852, an act was approved providing for the organization of county boards and prescribing some of their powers and duties, in force May 6, 1853, wherein by §10 (§5983 Burns 1914, §5743 R. S. 1881) which is still in force, it is provided that “The commissioners
In the instant case there was competent and uncontradicted testimony before the jury other than exhibit “B”, showing that Booker, prior to November, 1913, was engaged in conducting a saloon at the place where it is alleged the illegal sales' of liquor were made to Gary, under a renewal license granted by the board of commissioners of Greene county. Booker testified that he was the sole owner and operated a saloon at that place until November, 1913, under a retailer’s license obtained by him in August before. The only purpose for introducing exhibit “B” in evidence was that it tended to show that Booker was a licensed dealer and had an unexpired license. These facts were not controverted. In the trial court the defendants submitted the question of their liability on the proposition that Booker, in November, 1913, and prior to the unlawful sales of liquor to Gary, had sold his stock of liquors and furniture to Callahan, and in nowise thereafter had anything to do with the business which was conducted exclusively by Callahan on his own account. Hence it may be admitted that the admission of exhibit “B” in evidence was improper, yet it tended only to establish a fact conclusively proven by other competent and uncontroverted evidence. Under this state of the record, the error of which appellants complain, cannot be regarded as prejudicial to any of their substantial rights. Ohio Valley Trust Co. v. Wernke (1912), 179 Ind. 49, 99 N. E. 734; Board, etc. v. Hammond (1882), 83 Ind. 453; Holliday v. Thomas (1883), 90 Ind. 398; Citizens’ State Bank v. Adams (1883), 91 Ind. 280; Culver, Admx., v. Marks (1890), 122 Ind. 554, 23 N. E. 1086; Stumph v. Miller (1895), 142 Ind. 442, 41 N. E. 812.