American Sur. Co. of New York v. Souers

Decision Date28 May 1912
Docket NumberNo. 7,624.,7,624.
PartiesAMERICAN SURETY CO. OF NEW YORK v. SOUERS et al.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Whitley County; Luke H. Wrigley, Judge.

Action by the State, on the relation of Retta Souers and others, against the American Surety Company of New York. Judgment for plaintiffs, and defendant appeals. Affirmed.Gates & Whiteleather and Watkins & Butler, for appellant. John S. Branyan, W. F. McNagny, and Lesh & Lesh, for appellees.

HOTTEL, C. J.

Appellee Retta Souers is the wife, and the other appellees are the children, of Thomas Souers, and this action was brought by the state, with said appellees as relators, to recover upon a saloon keeper's bond, executed by one John S. Brown as principal and appellant as surety. The action is based upon section 8355, Burns 1908, and the breach or violation of duty by the principal of the bond relied upon as creating the liability alleged in the complaint is the unlawful sale of liquor to said Thomas Souers at a time when he was intoxicated, resulting in a loss to the relators of their means of support. A trial by jury resulted in a verdict for appellees in the sum of $1,500.

The complaint avers, in substance, that, as a result of said unlawful sale to said Souers, when he was in said intoxicated condition, he became so extremely intoxicated that he was irritable, crazed, and frenzied, and while in such condition engaged in a quarrel with one Benjamin Thomas and shot and killed him; that on account of such killing said Souers was indicted, tried, convicted, and sent to the state prison; and that the relators were thus deprived of their means of support.

It is conceded by appellant that the complaint follows that of Homire v. Halfman, 156 Ind. 470, 60 N. E. 154, and, as no objection to its sufficiency is urged, we need give it no further notice.

The first question presented by this appeal is the alleged error of the trial court in sustaining a demurrer to appellant's first plea in abatement. The substance of this plea is that, at the time appellees commenced this action, appellee Retta Souers filed a suit upon a similar bond executed by another saloon keeper, viz., one Harvey Gill as principal and appellant as surety thereon, and therein alleged the same grounds for recovery which form the basis of the complaint at bar; that said suit was venued to the Wells circuit court and was there pending at the time this cause came up for trial.

[1] A plea in abatement, to be sufficient, must contain “the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, leaving, on the one hand, nothing to be supplied by intendment or construction; and, on the other, no supposable special answer unobviated.” Needham et al. v. Wright, 140 Ind. 190, at pages 193, 194, 39 N. E. 510, at page 511;Board, etc., v. Lafayette, etc., 50 Ind. 85, 117;Kelley v. State, 53 Ind. 311, 312; 1 Am. & Eng. Law, and notes; Lechner v. Strauss et al., 98 N. E. 444.

[2] When such plea is based upon the ground of another action, it must show clearly that the suit pending is for the identical cause of action as that involved in the cause which is sought to be abated, and that it is between the same parties or their privies. Needham v. Wright, supra; Bryan v. Scholl, 109 Ind. 367, 10 N. E. 107;Paxton, Rec., v. Vincennes Mfg. Co., 20 Ind. App. 253, 50 N. E. 583.

[3] Although this is a suit upon a bond, the basis of the action sounds in tort, and appellees were entitled to proceed against all the wrongdoers either jointly or separately, and where separate actions are brought, the same may be prosecuted concurrently until judgment has been reached; but one satisfaction is a bar to further proceedings on the same cause of action. Cleveland, etc., R. Co. v. Gossett, Adm'x, 172 Ind. 525-535, 87 N. E. 723;Cleveland, etc., R. Co. v. Hilligoss, 171 Ind. 417-423, 86 N. E. 485, 131 Am. St. Rep. 258;Indianapolis, etc., Co. v. Holtzclaw, 40 Ind. App. 311, 81 N. E. 1084.

[4] Appellant's liability as surety is grounded in Brown's liability as principal, and the case at bar is prosecuted by additional plaintiffs upon a different bond, and is based upon a different sale of liquor made at a different time and place from that of the action against Gill. The Gill action could not, therefore, serve to abate the present action as to either Brown or appellant.

For the reasons indicated, the demurrer to the first plea in abatement was properly sustained, as was also the demurrer to appellant's third paragraph of answer, which presented the same defense as a bar to this action.

[5] A second plea in abatement was filed by appellant, the substance of the averments of which, in brief, were that subsequent to the occurrence of the matters alleged in appellees' complaint the voters of Huntington county, at a special election under the local option law, voted to prohibit the sale of intoxicating liquors as a beverage in said county; “that by reason of such election and by reason of the act of said special session of 1908 of the General Assembly, the former law of this state regarding the regulating and issuing of licenses *** was repealed, and the said act of the special session of 1908 contained no clause saving, pending litigation or providing for a continuance of the act of 1875 (Acts Sp. Sess. 1875, c. 13) *** for any purpose whatever.” The ruling of the court below in sustaining a demurrer to this plea presents the second error relied upon.

Appellant urges that the local option law of 1908 (Acts Special Session 1908, p. 4) repealed or suspended the act of 1875, under which the bond sued on was issued, and that any suit based on said bond would abate because of the repeal or suspension of the law. Section 12 of said act provides: “Nothing contained in the provisions of this act shall affect, amend, repeal or alter in any way the act entitled ‘An act to better regulate and restrict the sale of intoxicating, *** liquors,’ *** approved March 11, 1895, nor the act to amend section nine of the above mentioned act approved February 15, 1905, nor of any law or ordinance which prohibits throughout any township, ward or any residence district the sale of intoxicating liquors, but this act shall be deemed additional and supplemental thereto.” Although this section 12 does not expressly mention the act of 1875 as among the acts expressly saved from repeal, yet the closing language of said section indicates that the intention of the Legislature was that the act of 1908 should be additional and supplemental to the existing law upon the same subject.

But assuming, without deciding, that the act of 1908 had the effect of repealing the act of 1875, it in no way deprived appellees of their right to maintain this action.

Section 248, Burns 1908, provides that “the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”

Appellant relies upon the case of Taylor v. Strayer, 167 Ind. 23, 78 N. E. 236, 119 Am. St. Rep. 469, to take this action out of the operation of the section of statute last above quoted. That case involved the establishment of a drain, and, while the cause was pending in the lower court, the General Assembly passed a new drainage law and repealed all prior drainage statutes. Upon appeal counsel for appellees attempted to invoke the saving provisions of the statute above quoted, but the Supreme Court said, at page 30 of 167 Ind., at page 238 of 78 N. E., 119 Am. St. Rep. 469: “It is manifest that section 248, supra, has no application to any feature of this case, but only relates to penalties, forfeitures and kindred liabilities.

In this connection we may remark that, for the purpose of this appeal, the appellant is in no position to insist that the liability on the bond herein sued on is not akin to a penalty because a large portion of one of the pages of its brief is taken up with the propositions and authorities cited, as to the effect that the recovery which the statute authorizes in cases of this kind is penal in character.

Again, section 243, Burns 1908, provides: “No rights vested, or suits instituted, under existing laws shall be affected by the repeal thereof, but all such rights may be asserted, and such suits prosecuted, as if such laws had not been repealed.”

This is a suit upon a bond. The condition of the bond for the breach, or violation, of which the action was brought, is charged to have been broken at a time previous to the enactment of the local option laws of 1908, and the liability for such breach had therefore accrued before the passage of such act, and would not, under the provisions of the sections of the statute, supra, and the authorities construing the same, be affected by such act. State v. Helms, 136 Ind. 122, 35 N. E. 893;Hochstettler v. Mosier, etc., Co., 8 Ind. App. 442, 35 N. E. 927;State ex rel. v. Halter, 149 Ind. 292, 300, 302, 47 N. E. 665, 49 N. E. 7;Starr, Treas., v. State, 149 Ind. 592-594, 595, 49 N. E. 591;City of Indianapolis v. Ritzinger, 24 Ind. App. 65, 77, 56 N. E. 141.

The sections of statute and authorities, supra, justified the ruling of the court below on the demurrer to the second plea in abatement and to the second paragraph of answer which raised the same question.

[6] With their general verdict, the jury returned answers to interrogatories, and a motion was made by appellant for judgment thereon which was by the court overruled. This ruling presents another alleged error relied upon and urged by appellant.

The jury in its said answers found that when Thomas Souers reached Troy City, where the shooting occurred, he went to a store to return a...

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