166 Ind. 689 | Ind. | 1906
—This is an action to recover on the bond of a retail liquor dealer. Appellee Terheide is the principal on the bond in suit and his coappellees are sureties thereon. The complaint is in two paragraphs, under each of which damages are claimed by the relator, Edward
The second paragraph alleges the same facts as the first, but in addition thereto expressly avers that said November 2, 1902, was the first day of the week, commonly called Sunday; that defendant Terheide unlawfully kept his saloon open for the sale of intoxicating liquors on said day, and by his said agent, William Tyner, sold such liquors in his said saloon to all who applied therefor; that during the greater part of said day his saloon was filled with men who were buying and drinking intoxicating liquors therein; that at the time the relator entered said saloon upon said day, between the hours of 3 and 4 o’clock p. m., it was filled with a large number of drunken and disorderly men, who were drinking intoxicating liquors; 'that said William Tyner, the agent of defendant Terheide, then and there suffered and permitted Frank Tyner violently to throw the relator to the floor, without cause, provocation or excuse, thereby breaking his right leg, etc., for which damages are demanded.
Section 7279, supra, which embraces section four of the act of 1875 (Acts 1875 [s. s.], p. 55), providing for the granting of a license to retail intoxicating liquors, provides that the person obtaining such license shall give a bond in the sum of $2,000, conditioned “that he will keep an orderly and peaceable house, and that he will pay all fines and costs that may be assessed against him for any viola-: tions of the provisions of this act, and for the payment of
Section 7288 Burns 1901, §5323 E. S. 1881, which is section twenty of said act of 1875, declares that “every person who shall sell, barter, or give away any intoxicating liquors, in violation of any of the provisions of this act, shall he personally liable, and also liable on his bond * * * as required by section four of this act, to any person who shall sustain any injury or damage to his person or property or means of support on account of the use of such intoxicating liquors, so sold as aforesaid.”
In State, ex rel., v. Knotts (1900), 24 Ind. App. 477, the Appellate Oourt held that there was no liability on the part of a saloon-keeper for damages arising out of the murder of the relator’s husband committed by the agent of the retailer in that case, said agent at the time being in charge of the saloon which was then and there kept and maintained in a disorderly manner. On no view of the case, under the facts alleged in the complaint, can the latter be held to state a good cause of action on the bond in suit. The demurrer, therefore, was properly sustained.
Judgment affirmed.