Draper v. Fitzgerald

• Decision Date: 24 April 1888
• Parties: G. B. DRAPER, Respondent, v. JOHN FITZGERALD, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 518

G. B. DRAPER, Respondent, v. JOHN FITZGERALD, Appellant.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the Lawrence Circuit Court, HON. M. G. MCGREGOR, Judge.

Affirmed.

W. CLOUD and JOSEPH FRENCH, for the appellant: It appears by the evidence that the liquor was not sold by the defendant, but by John Daily. The statute provides against selling or suffering a sale. In this declaration there is no allegation that the defendant suffered a sale to be made. The cause of action being statutory and penal, the declaration must set forth the particular acts or omissions which constitute the cause of action by which the alleged penalty was incurred. 1 Chit. on Plead. s. p. 386; Nellis v. Railroad, 30 N.Y. 518; Teetshorn v. Hull, 30 Wis. 165. Section 5455, Revised Statutes, does not aid this omission in the declaration. This action is under section 5454, Revised Statutes, as amended by Laws of 1885, p. 160, which provides a penalty for selling as a dram-shop keeper or any other person. In this case, defendant is charged with selling as a dram-shop keeper, which, if true, in addition to the penalty of fifty dollars, forever disqualifies him from getting a dram-shop license. Rev. Stat., sec. 5458. There is no evidence showing that defendant was a dram-shop keeper at the time of the sale, yet he is precluded by this judgment from ever obtaining a dramshop license. State v. Heckler, 81 Mo. 417. In this case the evidence is that the sale was made against the express directions of the defendant; the court, therefore, erred in not submitting this question to the jury. State v. Durkem, 23 Mo.App. 387; State v. Baker, 71 Mo. 475; State v. Reiley, 75 Mo 521; Town of Kirkwood v. Autenreith, 11 Mo.App. 515.

L. W WHITE and H. BRUMBACK, for the respondent: The evidence offered by defendant, that the minor said he was over twenty-one, was properly excluded. The prohibition of the statute is against selling, etc., to " " " " any minor," and not merely to any minor who admits he is such, and excepting those who may tell a falsehood as to their age. Section 5455 of Revised Statutes provides that any sale, etc., made to any minor by any clerk agent, or other person acting for any dram-shop keeper shall be deemed and taken to be as the act of such dram-shop keeper. Defendant cannot evade this enactment by making it appear that he had given a general instruction to his bartender not to sell to minors. Paint & Color Co. v. Conlon, 92 Mo. 221. The cases of State v. Baker, 71 Mo. 475; State v. Reiley, 75 Mo. 521; State v. Heckler, 81 Mo. 417, and all other like cases, are criminal actions, and only decide: " A principal is not criminally liable for the acts of his agent, when that agent acts in contravention of the commands of his principal." The case at bar is but a civil case and for an act not indictable. State v. Amor, 77 Mo. 568.

OPINION

THOMPSON J.

This was a civil action, under section 5454, Revised Statutes, as reë nacted by the act of March 31, 1885, (Laws of 1885, p. 160), to recover the penalty therein denounced for selling intoxicating liquor to a minor son of the plaintiff. The statute is as follows: " Every dram-shop or wine and beer-house keeper, or any other person, who shall sell, give away, or otherwise dispose of, or suffer the same to be done about his premises, any intoxicating liquors, in any quantity, to any minor, without the written permission of the parent, master, or guardian of such minor first had and obtained, * * * shall forfeit and pay to such parent, master, or guardian, for every such offense, the sum of fifty dollars, to be recovered by the party entitled thereto, by civil action, in any court of competent jurisdiction, against such dram-shop or wine and beer-house keeper," etc. The statement of the plaintiff's cause of action, filed before the justice of the peace before whom the action was commenced, charged that the defendant, being a duly licensed dram-shop keeper, did sell Lambertine Draper, a minor son of the plaintiff, intoxicating liquors, to-wit, one half-pint of whiskey, without the written permission of the parents of Lambertine Draper first had and obtained, etc.

The evidence adduced at the trial in the circuit court showed that the defendant's bartender, a man named John Daily, on the date charged in the statement, sold a half-pint of whiskey to Lambertine Draper, a son of the plaintiff, who was then only nineteen years of age, without the written consent of the boy's parents. It also showed that Daily did this contrary to the instructions of the defendant. On the objection of the plaintiff, the court refused to allow the defendant to show that when Lambertine Draper applied for the whiskey, he represented to the defendant's barkeeper that he was above the age of twenty-one years; and to this ruling the defendant excepted.

The jury returned a verdict for the plaintiff for the statutory penalty, and judgment was rendered thereon, from which the defendant prosecutes this appeal.

I. The first error assigned is, that the court refused to instruct the jury, as requested by the defendant, to find for the defendant. This assignment of error is predicated upon the argument that the liquor was not sold to the minor by the defendant, but by the defendant's barkeeper, against the defendant's instructions; that, the action being statutory and penal, the...