O'Flinn v. State

• Decision Date: 28 January 1889
• Citation: 5 So. 390,66 Miss. 7
• Parties: T. O'FLINN v. THE STATE
• Court: Mississippi Supreme Court

5 So. 390

66 Miss. 7

T. O'FLINN v. THE STATE

Supreme Court of Mississippi

January 28, 1889

APPEAL from the circuit court of Clay county, HON. LOCK E. HOUSTON Judge.

This suit was brought in the circuit court of Clay county, by the state of Mississippi, upon the information of R. H. Payne against T. O'Flinn and the sureties on his bond, as a licensed retailer in the city of West Point. The breach of the bond assigned is the sale of liquor by the defendant O'Flinn, to a minor, the son of Payne. The bond, which was for the sum of two thousand dollars, was dated February 18, 1886, and was in the usual form, and was conditioned according to the code, sec. 1104. The declaration also contained a count, alleging said sale by the employees and clerks of defendant, O'Flinn.

The defendants, in addition to the plea of general issue, filed a special plea setting up that "if the clerks and employees of the said O'Flinn sold spirituous liquors to said Frank Houston Payne, a minor, as in said declaration alleged, these defendants deny that the said sale was with the knowledge or consent of said O'Flinn, but aver that it was without his knowledge or consent, and against his consent and directions, and this they are ready to verify etc." Plaintiff interposed a demurrer to this plea which was sustained.

The evidence for the plaintiff showed that Frank Houston Payne, a minor, aged eighteen, went into the saloon owned and kept by O'Flinn, and bought a pint of whisky. The man who sold the whisky, and whom plaintiff's witness did not know, was standing behind the counter, and filled for the said minor a bottle from a barrel in the corner of the saloon, and delivered it to him. The boy paid him twenty-five cents for it.

The defendant, O'Flinn, testified that he and his son alone attended to the business of the saloon, and that he had no other clerk; that he had not sold any liquor to said minor, nor was any person authorized at that time to sell whisky for him, except his son; that he sometimes got an extra clerk for a day or two at a time when he was busy, but that the time at which this sale was alleged to have occurred was not a busy time with him, and it was, therefore, improbable that any one else sold the liquor to young Payne; that no whisky was sold to Payne with his knowledge or consent.

The son of said defendant testified that he was clerk for his father; that he had not sold the whisky to Payne, and that his father had no other clerk at the time. The verdict and judgment were in favor of plaintiff for the penalty of the bond, and defendants appealed.

Among other errors assigned is the refusal of the court to instruct the jury that the bold sued on was conditioned not to violate any of the provisions of chap. 39 of the code of 1880, and that under the provisions of that chapter a person is not liable for selling whisky to a minor, unless it was knowingly done.

Judgment affirmed.

Barry & Beckett and Fox & Roane, for appellants.

The charges given for the plaintiff in effect tell the jury that if the minor bought any liquor in the house of T. O'Flinn, in which he had at the time any interest whatever, they would find for the plaintiff. This clearly raises a construction of the statute, as the evidence shows that the liquor was not sold by O'Flinn, or any clerk, agent, or employee of his. The charge referred to is subject to the criticism that it is uncertain whether it means that a recovery should be had if O'Flinn owned any interest in the liquor, or in the house. There is no pretence that the statute would make him liable if he only owned an interest in the house. Yet, the jury may have been misled. But if it be meant that he is liable if he owned any interest in the liquor, without any other element, we think it is clearly wrong.

The condition of the bond is, "that O'Flinn should not retail, or otherwise dispose of any liquor to a minor, and should observe all the requirements of the chapter 39 of the revised code of this state for the year 1880." The rule in regard to sureties is, that there is no implication against them. The implications are always resolved in their favor. They are entitled to stand on the very terms of the bond. Field v. Rawlings, 6 Ill. 583; Leggett v. Humphries, 21 How. 75; Walsh v. Bailie, 10 Johns. 182; Manufacturers' Bank v. Cole, 39 Me. 188; Stull v. Hance, 62 Ill. 52; Furlong v. The State, 58 Miss. 717; Johnston v. The State, 63 Miss. 228.

The words "otherwise dispose of" in the bond and statute do not enlarge the statute, but are to be confined to and within the word retail. Amos v. The State, 73 Ala. 498.

It has been repeatedly held that a retailer is not liable for liquors sold by a stranger behind his counter, and without his knowledge or consent, and the rule is the same if it be sold by a menial, servant, or porter, or one not authorized to sell, or who acts beyond the scope of his employment. Schafer v. The State, 49 Ind. 460; Anderson v. The State, 39 Ind. 553; Corporation v. Silverstein, 36 La. Ann. 912; George v. Gobey, 128 Mass. 289.

Without a statute like ours, a retailer is not liable to indictment for liquor sold, even by his clerk or partner, without his knowledge or consent. Cloud v. The State, 36 Ark. 151; Whitton v. The State, 37 Miss. 379; State v. Mahony, 23 Minn. 181; Thompson v. The State, 45 Ind. 495; and in all the cases decided under statutes like ours, the sales were either by a partner or clerk. Cloud v. The State, supra; Whitton v. The State, supra; Fahey v. The State, 62 Miss. 402. These cases have never been extended beyond sales by a partner or clerk to sales by a mere stranger or person outside the scope of his employment.

But even if the retailer were liable to indictment for a sale of the liquor by a stranger, it does not follow that his sureties are civilly liable. They may stand back and say, "it is not so nominated in the bond." The recovery is for a breach of the bond. Code 1880, § 1104.

The bond is not to be extended beyond its terms. It does not embrace amendments to the code, but expressly refers to the code of 1880, and the charge announcing this rule should have been given.

Beall & Pope, for appellee.

The special plea filed by defendants raised all the questions now involved on this appeal, and as a demurrer was sustained to it, and defendants acquiesced in the judgment upon it, and neither on the motion for new trial nor here by assignment of error, complain of the action of the court upon the demurrer defendants cannot now be heard upon that question. If defendants would bring that matter before the court they must do so directly, by assigning that for error, and not indirectly by means of instructions, and get this court to review...