O'Banion v. De Garmo

• Decision Date: 08 October 1903
• Citation: 96 N.W. 739,121 Iowa 139
• Parties: NANCY O'BANION, Appellant, v. WM. DE GARMO, JOHANNETTE LINDER AND P. GUNNOUNDE
• Court: Iowa Supreme Court

96 N.W. 739

121 Iowa 139

NANCY O'BANION, Appellant, v. WM. DE GARMO, JOHANNETTE LINDER AND P. GUNNOUNDE

Supreme Court of Iowa, Des Moines

October 8, 1903

Appeal from Harrison District Court.--HON. W. R. GREENE, Judge.

THE plaintiff filed a petition December 26, 1900, in which she alleged that on the 3d day of January, 1899, her husband obtained at the saloon of the defendant De Garmo intoxicating liquors which contributed to his intoxication, on account of which he was killed by a train of cars; that in September 1896, said De Garmo filed with the county auditor a bond with the other defendants as sureties, conditioned for the payment of all damages resulting from the sale of intoxicating liquors upon lot 11 in block 18 of Logan, Iowa. Because of the breach of said condition, she prays for damages occasioned thereby. Issue was joined thereon September 9, 1901, and three days later, during the trial, an amendment to the petition was filed, alleging that the sales mentioned in the petition were from a building located on lot 13, instead of lot 11 of the same block; that another bond had been executed by De Garmo, with the same sureties, and like conditions with respect to sales at the last named place. To this amendment defendants demurred on the ground that the cause of action was barred by the statute of limitations. The demurrer was sustained, and, as the evidence showed the sales to have been from the premises described as lot 13, a verdict was directed for defendants. From judgment thereon, plaintiff appeals.

Affirmed.

C. W Kellog and S. H. Cochran for appellant.

Bolter Bros. and Roadifer & Arthur for appellee.

OPINION

LADD, J.

The petition was based on a bond describing the premises at which the sales of intoxicating liquors to plaintiff's husband were made as lot 11 in block 18. The amendment averred that such sales occurred at another place, namely, lot 13 of the same block, and sought recovery on a second bond so describing the premises. The sales occurred January 3, 1899, in a building on lot 13, and this amendment was filed September 12, 1901, more than two years after the alleged wrong. Two questions arise: (1) Did the amendment set up an entirely new cause of action? (2) Did proof of sales on lot 13 tend to establish a breach of the bond sued on in the petition? It must be kept in mind that the action is on the bond, and we have no concern with the principal's independent liability. It is also well to remember that the foundation of the action is the sale of the intoxicating liquors, and the consequent intoxication of the husband, occasioning damages to plaintiff. The intoxication was the direct injury resulting from the wrongful act of selling the liquor to the person drinking it, and such injury is the cause of action. That to the wife is wholly consequential. Emmert v. Grill, 39 Iowa 690. Paragraph 3, section 3447, of the Code, expressly limits the period within which actions may be maintained therefor to two years: "Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a...