American Surety Company of New York v. State ex rel. Souers

• Decision Date: 28 May 1912
• Docket Number: 7,624
• Citation: 98 N.E. 829,50 Ind.App. 475
• Parties: AMERICAN SURETY COMPANY OF NEW YORK v. STATE OF INDIANA, EX REL. SOUERS ET AL
• Court: Indiana Appellate Court

98 N.E. 829

50 Ind.App. 475

AMERICAN SURETY COMPANY OF NEW YORK v. STATE OF INDIANA, EX REL. SOUERS ET AL

No. 7,624

Court of Appeals of Indiana

May 28, 1912

From Whitley Circuit Court; Luke H. Wrigley, Judge.

Action by the State of Indiana on the relation of Retta Souers and others against the American Surety Company of New York. From a judgment for plaintiffs, the defendant appeals.

Affirmed.

Gates & Whiteleather, Watkins & Butler, for appellant.

John S Branyan, W. F. McNagny, Lesh & Lesh, for appellees.

HOTTEL C. J., Adams, Myers, Felt, Ibach and Lairy, JJ., concur.

OPINION

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 on a saloon-keeper's bond, executed by John S. Brown as principal and appellant as surety.

The action is based on § 8355 Burns 1908, § 5323 R. S. 1881, and the breach or violation of duty by the principal of the bond relied on, 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 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 (1901), 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 on a similar bond executed by another saloon-keeper, viz., 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.

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 v. Wright (1895), 140 Ind. 190, 193, 194, 39 N.E. 510. See, also, Board, etc., v. Lafayette, etc., R. Co. (1875), 50 Ind. 85, 117; Kelley v. State (1876), 53 Ind. 311, 312; 1 Am. and Eng. Ency. Law 11 and notes; Lechner v. Strauss (1912), ante 414, 98 N.E. 444.

When such plea is based on 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 (1887), 109 Ind. 367, 10 N.E. 107; Paxton v. Vincennes Mfg. Co. (1898), 20 Ind.App. 253, 50 N.E. 583.

Although this is a suit on 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 (1909), 172 Ind. 525, 535, 87 N.E. 723; Cleveland, etc., R. Co. v. Hilligoss (1908), 171 Ind. 417, 423, 86 N.E. 485, 131 Am. St. 258; Indianapolis Traction, etc., Co. v. Holtzclaw (1907), 40 Ind.App. 311, 81 N.E. 1084.

Appellant's liability as surety is grounded in Brown's liability as principal, and the case at bar is prosecuted by additional plaintiffs on a different bond, and is based on 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.

A second plea in abatement was filed by appellant, the substance of the averments of which, in brief, was that subsequent to the occurrence of the matters alleged in appellees' complaint, the voters of Huntington county, at a special election under the county local option law (Acts 1908 [s. s.] p. 4), 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 * * * for any purpose whatever."

The ruling of the court below in sustaining a demurrer to this plea presents the second error relied on.

Appellant urges that the local option law of 1908, supra, repealed or suspended the act of 1875 (Acts 1875 [s. s.] p. 55, § 8355 Burns 1908), 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 of 1908 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 aboce 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 § 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 on the same subject.

But assuming, without deciding, that the act of 1908, supra, had the effect of repealing the act of 1875, supra, it in noway deprived appellees of their right to maintain this action.

Section 248 Burns 1908, § 248 R. S. 1881, 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 on the case of Taylor v. Strayer (1906), 167 Ind. 23, 78 N.E. 236, 119 Am. St. 469, to take this action out of the operation of the section of statute last 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. On appeal, counsel for appellees attempted to invoke the saving provisions of the statute above quoted, but the Supreme Court said, at page 30: "It is manifest that § 248, supra [§ 248 Burns 1901, 248 R. S. 1881], has no application to any feature of this case, but only relates to penalties, forfeitures and kindred liabilities." (Our italics.)

In this connection we may remark that, for the purpose of this appeal, 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 propositions and authorities cited to the effect that the recovery which the statute authorizes in cases of this kind is penal in character.

Again § 243 Burns 1908, § 243 R. S. 1881, 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 on 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 law 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, ex rel., v. Helms (1893), 136 Ind. 122, 35 N.E. 893; Hochstettler v. Mosier Coal, etc., Co. (1893), 8 Ind.App. 442, 35 N.E. 927; State, ex rel., v. Halter (1898), 149 Ind. 292, 300, 302, 47 N.E. 665, 49 N.E. 7; Starr v. State, ex rel. (1898), 149 Ind. 592, 594, 595, 49 N.E. 591; City of Indianapolis v. Ritzinger (1900), 24 Ind.App. 65, 77, 56 N.E. 141.

The sections of statute and authorities cited justified the ruling of the court below on the demurrer to the second plea in abatement, and to the second paragraph of...