Dudley v. State ex rel. Roe

• Decision Date: 24 April 1907
• Docket Number: No. 5,981.,5,981.
• Citation: 40 Ind.App. 74,81 N.E. 89
• Parties: DUDLEY et al. v. STATE ex rel. ROE et al.
• Court: Indiana Appellate Court

40 Ind.App. 74

81 N.E. 89

DUDLEY et al.

v.STATE ex rel. ROE et al.

No. 5,981.

Appellate Court of Indiana, Division No. 2.

April 24, 1907.

Appeal from Circuit Court, Gibson County; O. M. Welliorn, Judge.

Action by the state, on the relation of Anna P. Roe and others, against James A. Dudley and another. From a judgment for plaintiff, defendants appeal. Reversed.

W. A. Cullop and Geo. W. Shaw, for appellants. C. D. Hunt, S. W. Williams, and Thos. Duncan, for appellee.

RABB, J.

This was an action brought on the relation of the widow and minor children of one Henry M. Roe against the appellant Dudley and the United States Fidelity & Guaranty Company of Baltimore City, Md., the surety on his bond given to procure a license to vend liquors at retail, and it is charged in the complaint that, in violation of the law, the appellant Dudley sold to said Roe, when he was in a state of intoxication, intoxicating liquor of which he drank, and thereby increased his intoxication, and that while in such state of intoxication, and caused thereby, he fell from the roadside, and was, by reason of his intoxicated condition, unable to help himself, and perished with cold, whereby the relators were injured in their means of support. A general denial was filed to the complaint, a jury trial had, resulting in a verdict and judgment in favor of the appellees. The only error complained of here is the action of the court in overruling each of the appellant's motions for a new trial, and it is only necessary to consider one question raised upon this motion.

The court, over the appellant's objection, instructed the jury as follows: “If you find from the evidence by a preponderance thereof that on or about the 12th day of December, 1903, the defendant Dudley or his employé in his place of business at the town of Sullivan, Ind., sold to the deceased intoxicating liquor at a time when he was in a state of intoxication, and the seller had knowledge of his intoxicated condition at the time he so furnished such liquor, or had an opportunity to know of such intoxicated condition of said Roe, and you further find from the evidence that the deceased and his son, then about 17 years of age, started in a two-seated buggy of the ordinary kind to drive to their home, a distance of about ten miles, in a rural district; that they left said town in manner aforesaid about 5 o'clock p. m. on said day, and that, when they had proceeded on their way homeward some four or five miles,...