199 Mo. App. 470 | Mo. Ct. App. | 1918
This is an action in the name of the State by relator on defendant Hailer’s bond as a dram-shop keeper, the defendant Moerschel and Urban being sureties thereon. There was a verdict and judgment for $150 and defendants have appealed.
The petition charges a breach of the bond on the part of said Hailer, and seeks to recover damages accruing to relator by reason of being injured on account of the failure to keep an orderly house, in that said dramshop keeper’s bartender, Lopp, while engaged in his duties as bartender and in serving drinks in the barroom proper and in the adjacent rooms, alleged to be a part of the saloon, violently and without provocation 'assaulted rela
There is no dispute over the fact that the assault was committed. Liability is denied on the ground that relator cannot sue the sureties on the dramshop bond for a violation thereof even though the relator be the party receiving direct, special and personal injury thereby. The defendants further claim that the assault and general disturbance arising therefrom took place either in the restaurant or kitchen attached to the saloon and not in the barroom proper and that the bondsmen are not liable for disorder therein. The evidence in relator’s behalf amply tends to support his claim that the assult was begun in the barroom proper, the barkeeper commencing to beat relator in there and continuing to beat him after forcing him through the opening into the adjacent room. But as this was disputed, and as the trial court instructed the jury that, under the conceded facts, the adjacent rooms called the restaurant and kitchen were all a.part of the dramshop and covered by the bond, it will be necessary to pass upon the propriety of this instruction if the other contention of defendants is found to be unavailing.
The conceded facts with reference to the saloon and restaurant, the conduct and management of the business and the arrangement of the building in which it is housed, are as follows:
Relator was, at-the time in question, a reporter for a paper in Sedalia, and was accompanying a number of government officials visiting the city that day. The party entered the barroom proper and relator asked defendant Hailer if they could have a table. The proprietor assented and led them through the opening into the part called kitchen and seated them at a table. - They sat here for a few minutes during which time drinks were ordered and, according to the evidence in plaintiff’s behalf, were brought from the bar to the table where the party sat, and they were paid for at the table. The barkeeper, Lopp, who committed the assault, denies that he served the drinks to this particular party, but says another of defendant Hailer’s barkeepers did. After a round or so of drinks were thus served, some one suggested sandwiches, and relator, acting somewhat as entertainer for the visitors, went into the room where the bar was to order them. After they were served, it was found that there was one sandwich lacking, in order to provide one for each member of the party. Relator again went back into the barroom proper to get the additional sandwich. The barkeeper, Lopp, because of his dislike for relator and because the latter was in his way in carrying drinks into the room from the bar, became angered at relator and, seizing him by the throat, began raining blows upon his face and head, and, forcing him back from the barroom through the opening into the restaurant portion, continued to beat him, calling him vile epithets and say
The question to be determined is whether suit can be maintained at the relation of the one who has been directly and specially injured by the failure “to keep at all times an orderly house.” Section 7196, Revised Statutes 1909, requiring a bond of a dramshop keeper before he can be licensed, says such bond shall be conditioned that he (1) “shall at all times keep an orderly house,” (2) that he “will not sell, give away or otherwise dispose of, or suffer the same to be done about his premises, any intoxicating liquor in any quanity to any minor,” (3) that he will not violate any of the provisions of the article on dramshops, (4) that he will pay all taxes on his
The bond was in due and proper form and conditioned as the law directs.
No point is made that the fighting and assault, together with the accompanying disturbance, done and created by the dramshop keeper’s bartender and permitted by the proprietor in his presence and place of business and while the same was being carried on, did not constitute a failure to keep an orderly house, and, for this reason, was not a breach of said bond. Defendants’ contention is that no recovery of damages can be had nor suit maintained at relator’s instance or for his benefit because he is not the proper party under the statute to maintain the suit. Another statute, section 7198, provides for a civil action by two or more reputable tax paying citizens, as relators, for the forfeiture of said bond and for the taxing of a penalty of not less than $100 to go to the school fund together with a reasonable attorney’s fee. Another statute, section 7213, provides for the recovery of a penalty of $50 for selling liquor to any minor, said penalty to go to the parent, master or guardian of said minor; while still another statute, section 7223, provides for the recovery of a penalty of not less than $50 nor more than $500 for selling (after notice) to an habitual drunkard, such penalty to go to the wife, father, mother, brother, sister, child or guardian of such drunkard, and involving the forfeiture of the dramshop license. Each of said last named sections makes the act therein specified a misdemeanor punishable by fine.
The statute nowhere expressly says that damages may be recovered by anyone specially injured by the failure to keep at.all times an orderly house, and for this reason defendants say this suit for damages cannot be maintained.
There is no question, but that where a statute creates a new right and prescribes a remedy, the statutory remedy is exclusive; but in this instance the statute provides
In Squires v. Michigan Bonding Co., 138 N. W. (Mich.) 1062, it is held that a saloon keeper’s bond, being for the benefit of the public and aaot strictly contractual in nature is to be construed according to the purpose, intent and aneaning of the statute pursuant to which it is given, and aaot according to the strict rules applicable to private contracts of suretyship. Certain it is that if the actioaa iaa the case at bar cannot be maintained, then individual citizens or members of the body politic have no protection by reason of said bond. If a persoia is beaten up and abused by the salooaa keeper or his agents while in the saloon, then the only redress afforded by the boaad is to have two reputable taxpaying citizens to bring suit for the forfeiture thereof, proyided they will volunteer to run the risk. We do not think this is
It is next contended that the obligation of the bond did not cover the rooms used in connection with the barroom denominated restaurant and kitchen. The conceded facts show that the restaurant room, the kitchen and the barroom, were all used in connection with each other wherein to sell drinks and carry on the business of retailing intoxicating liquors. The whole formed and was conducted as one business, so that, the restaurant room, the kitchen and barroom, in reality, constituted the premises and a part of the saloon, each being a mere department of the other. And the fact that there was a front door to each of said rooms numbered respectively 526, 528 and 530 and the license called for the location of the saloon at 530 did not make them separate. The business, as operated, was that of a saloon and restaurant combined, intermingled and mutually interchangeable, and the sureties knew this when they signed the bond. There is no doubt but that the bond and the obligation thereof should not be stretched to
We are of the opinion that relator, having suffered a direct and personal injury from the positive and intentional act on the part of the dramshop keeper’s agent and bartender, in direct- violation of the duty imposed by statute and guaranteed by the bond, namely “to keep at all times an orderly house,” is entitled to recover on the dramshop keeper’s bond for such direct and positive violation thereof, and hence affirm the judgment.