Bolen v. Still

• Decision Date: 10 April 1916
• Docket Number: 322
• Parties: BOLEN v. STILL
• Court: Arkansas Supreme Court

185 S.W. 811

123 Ark. 308

BOLEN v. STILL

No. 322

Supreme Court of Arkansas

April 10, 1916

Appeal from Searcy Circuit Court; John I. Worthington, Judge affirmed.

STATEMENT BY THE COURT.

Appellant administrator of the estate of Louis Bolen. deceased, brought suit on the bond required to be given by retail liquor dealers, to recover damages for his widow and children resulting from his death alleged to have been caused by reason of liquor sold at the house or place of business of appellees.

The complaint alleged that Louis Bolen, on the 10th day of April 1915, went to the appellee's saloon and purchased a quantity of liquor from which he became intoxicated and after the purchase started home on horseback and as a result of the intoxication, fell from his saddle, his foot hanging in the stirrup, and the horse became frightened and ran away and dragged him to death.

The answer admitted the sale of whiskey to the deceased and alleged that he came to the saloon in company with Lige Alexander, a man about 40 years of age, a responsible person that both parties were walking when they reached the saloon and duly sober, that each purchased some whiskey and went away not having taken more than one or two drinks, and in a duly sober condition; that defendants were only slightly acquainted with deceased at the time he purchased the whiskey; that he left their premises in a duly sober condition; that after he had gone more than half a mile from the saloon, he got on his horse, a young animal of a wild disposition and after riding several miles from their place of business, became so intoxicated that he got down off of his horse and lay down on the ground; that his companion and three or four other men, naming them, all responsible persons, knowing his condition put him back on his horse and he starting riding again towards home and the animal afterwards became frightened and threw him off and the injury resulted therefrom. The answer denied that the fall and resultant death was the approximate result of the intoxication caused from the sale of the intoxication caused from the sale of the whiskey.

It appears from the testimony that the deceased and Lige Alexander on the day of the injury rode their horses to the river near the saloon; that they went across the river in a boat and that Alexander bought two drinks of whiskey, one for each of them. Deceased bought two quarts of whiskey and half a pint of apricot cordial. They then bought a pint together to drink on the way home and Alexander also bought some whiskey for himself. They were at the saloon about half an hour and were put back across the river and walked down to where their horses were hitched and mounted and started riding back towards home, Bolen living about 15 miles from the saloon. They drank all the pint of whiskey that they bought together and then began on Alexander's supply. By this time they had gotten several miles from the river and deceased was so intoxicated that he fell or got down off his horse and lay down near a blacksmith shop. Alexander and three or four other men put him back on the horse and they had ridden probably a quarter of a mile further, when the horse became frightened and threw him, or he fell off, and his foot hung in the stirrup and he was dragged to death. The witness riding along with him was not clear as to how he came to fall or to be thrown from the saddle.

The testimony tended to show that the mare ridden by him was gentle, the earning capacity of the deceased, his life expectancy, etc.

The court instructed the jury, refusing to give appellees' requested instruction for a directed verdict and giving over appellant's objection their requested instruction numbered 6, telling the jury in effect that if they found deceased after becoming drunk was off his horse in a place of safety and afterwards by acts of third parties put in a perilous position and the injury caused thereby, they should find for the defendant.

From the judgment on the verdict for the defendants, plaintiff appealed.

Judgment affirmed.

Bratton & Bratton, for appellant.

1. The verdict is contrary to the law and the evidence and the court erred in its charge to the jury. Under Kirby's Digest, §§ 5121 to 5124 defendants were liable for all damages occasioned by the sale of liquor at their house of business. 66 Ark. 68; 38 Ia. 489; 51 Kan. 171; 62 N.W. 891; 31 N. E, 425; 94 Ill. 358; 19 A. 390; 38 N.E. 190; 26 Hun (N. Y.) 608; 19 S. Dak. 11; 16 Id. 118; 44 Am. Rep. 42; 69 N.E. 298; 61 N.W. 1087; 109 N.E. 905.

2. As to concurring causes producing injury, see 95 Ark. 297; 23 A. 733; 76 S.C. 262; 47 L. R. A. 647. As to intervening cause, see 66 S.W. 221; 127 Iowa 483; 35 P. 549; 169 F. 321.

3. The selling of the liquor producing drunkenness was the proximate cause....