Cole v. Searfoss

• Decision Date: 02 February 1912
• Docket Number: No. 7,484.,7,484.
• Parties: COLE v. SEARFOSS.
• Court: Indiana Appellate Court

49 Ind.App. 334

97 N.E. 345

COLE

v.SEARFOSS.

No. 7,484.

Appellate Court of Indiana.

Feb. 2, 1912.

Appeal from Circuit Court, Tipton County; L. B. Nash, Judge.

Action by Burley Searfoss against John W. Cole. From a judgment for plaintiff, defendant appeals. Reversed, and new trial directed.Oglebay & Oglebay, for appellant. J. F. Pyke, for appellee.

LAIRY, J.

The appellee, by his next friend, who is his father, recovered a judgment in the Tipton circuit court, from which this appeal is taken. The complaint on which the judgment is based is in two paragraphs, which in their substantial averments are practically alike. Each of these paragraphs state facts showing that appellee was at the time the events therein alleged occurred a boy about 15 years of age, and that on the 2d day of December, 1908, he was sent by his father with a horse and buggy to the town of Elwood to bring the appellant home; that appellee went to the town of Elwood in response to a telephone message informing his father that appellant was severely sick at that place; and that he arrived there late in the afternoon and found appellant in the saloon of Fred Wolf, not sick, but somewhat intoxicated. The complaint further shows that appellee informed the appellant that he had come to take him home, whereupon the appellant insisted upon the appellee taking a drink in the saloon. They went to a bar in company with a third person, and appellant ordered and paid for three drinks of whisky, which were served by the bartender, and appellee at the solicitation of appellant poured out and drank a glass of whisky. They then left the saloon, and started home, and, after going a short distance, appellant suggested that they go to a place known as “Skinney Bucks,” where again appellant purchased drinks, and appellee, at the request and solicitation of appellant, drank a bottle of beer. They then got into the conveyance and started for home, and, when they had reached a point on the road near the county line, appellant took from his pocket a bottle of whisky, and requested appellee to take a drink from the bottle, and the appellee did take a drink from the bottle. It further appears from the complaint that appellee objected to taking any of the drinks offered him by appellant, and that appellant insisted and prevailed upon him to take them, and that as a result of drinking the intoxicating liquors furnished by appellant the appellee became helplessly intoxicated, and unconscious, as was also appellant. It is further averred that the horse driven by appellee was gentle and safe, but that appellee was unable to properly control and manage it by reason of his intoxicated condition, and that it ran away, and as a result both appellant and appellee were thrown out, and appellee was injured. The complaint further charges that, as a result of such intoxication and the fall from the buggy as alleged, he was injured, and that he became sick, and that his health was permanently impaired, and that he has been subjected to the taunts and jibes of his friends and associates, and has been greatly annoyed and humiliated as a consequence, wherefore he prays damages.

The first error relied on for reversal is the action of the court in overruling the demurrer to the complaint. The first objection urged to the complaint is that it does not state facts sufficient to constitute a cause of action upon the theory that the appellant willfully and intentionally caused the injuries to appellee of which he complains. If the complaint proceeds upon the theory suggested, it is clearly insufficient, for the reason that it does not charge that the appellant intentionally and willfully caused the injuries to appellee of which he complains; but we do not understand that it proceeds upon that theory.

It is also suggested that, if the complaint proceeds upon the theory that appellant was guilty of negligence in furnishing to the appellee the liquors which caused his intoxication and the resulting injury, it does not state facts sufficient to constitute a cause of action, for the reason that it affirmatively discloses a defense by showing that the appellee was guilty of contributory negligence in drinking the liquor which caused his intoxication,and that this is true whether the negligence charged consists in the violation of a duty owing by appellant to appellee at common law, or in the violation of the provisions of a statute which is regarded as negligence per se.

[1] Where the negligence charged consists of a failure to observe a common-law duty, contributory negligence on the part of the person injured is always a defense, and this has been so frequently decided as not to require a citation of authorities. It has been also frequently held by the courts of this state that negligence of the injured party directly contributing to his injury is a defense in cases where the negligence charged consists in the violation of the terms of a penal statute. Pittsburg, etc., R. Co. v. West, 34 Ind. App. 95, 69 N. E. 1017;Cincinnati, etc., R. Co. v. Butler, 103 Ind. 31, 2 N. E. 138;Nickey v. Steuder, 164 Ind. 189, 73 N. E. 117. It has been held by the courts of this state that a person who treats another who is under the age of 21 years by purchasing intoxicating liquor which is served to such minor at a bar is guilty of giving intoxicating liquor to a minor in violation of section 8329, Burns' Ann. 1908. Topper v. State, 118 Ind. 110, 20 N. E. 699;Sumner v. State, 4 Ind. App. 403, 30 N. E. 1105.

[2] The appellant owed the duty to the state and also the appellee not to violate this statute, and a breach of this duty is negligence per se, but it is a general rule of law that no one can maintain an action for a wrong where he has assented to the act which caused his injury. The maxim, “Volenti non fit injuria,” is applied in such cases; that is to say, that to which a person assents is not esteemed in law an injury. Broom's Legal Maxims, p. 268. It appears from the averments of the complaint that the defendant was guilty of negligence in furnishing the intoxicating liquor to the plaintiff which made him drunk.

[3] Under our statute, it is not necessary that a complaint in an action for personal injuries based on the negligence of the defendant should allege want of contributory negligence on the part of the plaintiff. Burns' Ann. Stat. 1908, § 362. The complaint is therefore sufficient, unless the facts therein averred show affirmatively that the plaintiff was guilty of contributory negligence.

[4] In order to render a complaint, otherwise good, demurrable on the ground that the facts therein averred stated a defense, such facts must be sufficient to state a cause of defense if specially pleaded as an answer.

[5] The facts stated in the complaint which are relied on by the appellant as stating a cause of defense are that appellee, a boy between 15 and 16 years of age, at the solicitation of appellant, drank the whisky and beer given him by said appellant, and as a result became intoxicated, and that the injuries sued for resulted as a consequence. If the court can say as a matter of law that these facts show that the plaintiff was guilty of contributory negligence, then the complaint may be held to state a defense and the demurrer should be sustained. In passing upon this question, the facts averred are deemed to be admitted. Contributory negligence is generally a question of fact for the jury, but cases sometimes arise where it is a question of law for the court.

[6] Where the facts are admitted and are of such a nature that but one inference can be drawn therefrom by any fair and reasonable mind, the court should draw the inference and thus determine the question; but where, on the other hand, the facts are of such a character that two minds equally reasonable, equally honest, and equally fair and candid might draw opposite inferences, the question of contributory negligence is for the jury, and not for the court. Louisville, etc., R. Co. v. Sears, 11 Ind. App. 654, 38 N. E. 837;Dull v. Cleveland, etc., R. Co., 21 Ind. App. 571, 52 N. E. 1013;Indianapolis, etc., R. Co. v. Marschke, 166 Ind. 490, 77 N. E. 945;Beaning v. South Bend Electric Co., 45 Ind. App. 261, 90 N. E. 786;Dieckman v. Louisville, etc., Traction Co., 46 Ind. App. 11, 89 N. E. 909, 91 N. E. 179;City of Bloomington v. Rogers, 13 Ind. App. 121, 41 N. E. 395;Holcomb v. Norman, 91 N. E. 625.

The question then arises, Can this court say from an application of the rule just stated as a matter of law that it is contributory negligence for a boy between 15 and 16 years of age to drink intoxicating liquor at the solicitation of a man of full age who buys and furnishes it to him? If it can, the complaint in this case discloses a defense and the demurrer should have been sustained. If not, the averments of the complaint do not state a defense, and the demurrer was properly overruled.

[7] If a person of full age were to bring an action to recover damages resulting to him on account of his own voluntary intoxication, upon the ground that the liquor which produced his intoxication was sold or furnished to him in violation of statute, we should have no...