Demge v. Feierstein

• Decision Date: 22 June 1936
• Parties: DEMGE v. FEIERSTEIN ET AL.
• Court: Wisconsin Supreme Court

222 Wis. 199

268 N.W. 210

DEMGE

v.FEIERSTEIN ET AL.

Supreme Court of Wisconsin.

June 22, 1936.

Appeal from orders of the Circuit Court for Ozaukee County; C. M. Davison, Judge.

Affirmed.

An action by Helen Demge, administratrix of the estate of Emil D. Demge, deceased, against Fred L. Feierstein and Genevieve Feierstein, his wife, and St. Paul Mercury Indemnity Company, a corporation, commenced on January 5, 1935. The complaint alleged that plaintiff is the widow of one Emil Demge, deceased, and administratrix of his estate; that the defendantsFred and Genevieve Feierstein are engaged in the tavern business in the town of Fredonia; that the defendant indemnity company executed and delivered a bond under the provisions of section 176.10, Stats.1933, as added by Laws 1933-34, Sp. Sess., c. 13, whereby it agreed to pay any damages not exceeding $1,000 that might be sustained by reason of the sale of intoxicating liquors to intoxicated persons by the defendant Fred Feierstein; that on September 9, 1934, deceased was in the tavern conducted by the defendants Feierstein; that plaintiff came into the tavern, noticed that deceased was in an intoxicated condition and requested the bartender not to sell or give him any more intoxicating liquors; that deceased was then intoxicated to the knowledge of the defendants Feierstein, their agents, and employees; that defendants or their agents continued to sell or furnish intoxicating liquors to deceased with the result that deceased became so intoxicated as to lose control of his faculties and operate his automobile in such a careless manner as to “sustain serious injuries which required medical attention and finally resulted in the death of said Emil C. Demge”; that deceased left surviving him his widow, the plaintiff, and two minor children. Damages are claimed for funeral expenses, medical care, pain and suffering, pecuniary loss, and loss of society and companionship because of the wrongful death of Demge. Judgment is sought for the amount of bond from the defendant indemnity company. Defendants filed separate general demurrers to the complaint, and the orders appealed from were entered on June 20, 1935, sustaining the separate demurrers.

Peter M. Huiras, of Port Washington, for appellant.

Schanen & Linley, of Port Washington, and Bendinger & Hayes, of Milwaukee (John A. Kluwin, of Milwaukee, of counsel), for respondents.

WICKHEM, Justice.

For reasons that will hereafter be evident, it will be convenient upon this appeal to consider together the demurrers of defendants indemnity company and the defendants Feierstein.

The liability sought to be established by the complaint against defendant indemnity company is based upon section 176.10, Stats. 1933, as added by Laws 1933-34, Sp.Sess., c. 13, which in substance requires every applicant for a tavern license before delivery of the license to file with the town, village, or city clerk a bond to the state in the sum of $1,000 conditioned that the applicant during the continuance of his license “will not violate any provision of this chapter, will keep and maintain an orderly and well-regulated house; that he will not sell or give away any intoxicating liquor to any minor, having good reason to believe him to be such, or to persons intoxicated or bordering upon intoxication or to habitual drunkards; and that he will pay all damages that may be recovered by any person pursuant to section 176.35.”

Section 176.10 (3) provides: “In case of the breach of the condition of any such bond an action may be brought thereon in the name of the state of Wisconsin, and judgment shall be entered against the principals and sureties therein named for the full penalty thereof; and execution may issue thereupon by order of the court therefor to satisfy any judgment that may have been recovered against the principal named in said bond by reason of any breach in the conditions thereof or for any penalties or forfeitures incurred under this chapter.”

Section 176.10 (4) provides: “If more than one judgment shall have been recovered the court, in its discretion, may apply the proceeds of said bond towards the satisfaction of said several judgments in whole or in part in such manner as it may see fit.”

Section 176.30, Stats.1933, as added by Laws 1933-34, Sp.Sess. c. 13, prohibits the sale of intoxicating liquors to a minor or to any person intoxicated or bordering upon the state of intoxication and...