American Surety Company of New York v. State, ex rel. Holtam

• Decision Date: 15 December 1909
• Docket Number: 6,611
• Citation: 90 N.E. 99,46 Ind.App. 126
• Parties: AMERICAN SURETY COMPANY OF NEW YORK v. STATE, EX REL. HOLTAM
• Court: Indiana Appellate Court

90 N.E. 99

46 Ind.App. 126

AMERICAN SURETY COMPANY OF NEW YORK v. STATE, EX REL. HOLTAM

No. 6,611

Court of Appeals of Indiana

December 15, 1909

Rehearing denied April 29, 1910.

Transfer denied June 3, 1910, Reported at: 46 Ind.App. 126 at 130.

From Superior Court of Tippecanoe County; Henry H. Vinton, Judge.

Action by The State of Indiana, on relation of Laurella V. Holtam against the American Surety Company of New York. From a judgment for plaintiff, defendant appeals.

Affirmed.

Edwin P. Hammond, William V. Stuart and Dan W. Simms, for appellant.

Alfred W. Reynolds, Addison K. Sills, George W. Reynolds, James T. Saunderson, George P. Haywood and Charles A. Burnett, for appellee.

OPINION

ROBY, J.

This is an action brought by the State on the relation of the widow of Charles G. Holtam to recover on a liquor dealer's bond executed by James Francis as principal and the American Surety Company as surety. A demurrer for want of facts to the complaint was overruled. The issue was formed by a general denial. The jury found for appellee, and assessed damages at $ 1,237. Appellant's motion for a new trial was overruled and judgment rendered on the verdict.

The assignments not waived are that the court erred in its rulings on these two motions. The substance of the complaint, aside from averments as to the execution of the bond in suit, which is statutory (§§ 8319, 8355 Burns 1908, §§ 5315, 5323 R. S. 1881), and the issuance of license to Francis, is that the relatrix is the widow of said Holtam; that they were married in 1891, have one child, and the husband supported the family; that on January 28, 1906, "said day being then and there the first day of the week commonly called Sunday," said Francis sold beer and whisky to Holtam to be then and there drunk as a beverage; that Holtam was in a state of intoxication at the time, as Francis knew; that said liquors were drank by Holtam while in such state of intoxication in the saloon kept by said Francis; that on the evening of said day Holtam left said saloon (which is located at Kentland) and started to his home at Earl Park in a one-horse buggy; that he was intoxicated, by reason of drinking said liquor; that on the next day he was found on the highway so helpless, frozen and chilled that he could not speak; that he was taken to his home and nursed by relatrix until February 12, when he died; that his death was caused by and from the effect of said liquors sold to him while in a state of intoxication; that Francis departed life on March 17 of said year.

The first and most plausible objection to the pleading is that the liability of the surety upon a retailer's bond, based upon the making of illegal sales, is discharged by the death of the principal. The point is otherwise decided in State, ex. rel., v. Soale (1905), 36 Ind.App. 73, 74 N.E. 1111, but attention is called to the fact that a case cited in that opinion to this point ( Moriarty v. Bartlett [1884], 34 Hun 272) was reversed on appeal. Moriarty v. Bartlett (1885), 99 N.Y. 651, 1 N.E. 794. The supreme court of New York held in that case, that a right of action to the wife injured "in means of support," under a civil liability act did not abate. The judgment of the supreme court was reversed in a memorandum decision upon the authority of Hegerich v. Keddie (1885), 99 N.Y. 258, 1 N.E. 787, 52 Am. Rep. 25. This latter case had to do only with the survival of an action by the administrator for death caused by negligence, and is in nowise authority upon the question presented in the case at bar. The reasoning and persuasive authority of the case of Moriarty v. Bartlett (1885), 99 N.Y. 651, 1 N.E. 794, which is all it had in this State, are not destroyed by the subsequent action of the court of appeals. But adopting the language of Hegerich v. Keddie, supra, it may be said that "inasmuch as the statutes in this State are so different from our own, little analogy exists between the question there presented and the one under consideration."

Our statute (§ 8355, supra) is as follows: "Every person who shall sell, barter, or give away any intoxicating liquors, in violation of any of the provisions of this act, shall be personally liable, and also liable on his bond filed in the auditor's office, 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, to be enforced by appropriate action in any court of competent jurisdiction."

When an applicant is granted a license to sell intoxicating liquor, and he accepts it by...