Gage v. Harvey

• Decision Date: 24 December 1898
• Citation: 48 S.W. 898,66 Ark. 68
• Parties: GAGE v. HARVEY
• Court: Arkansas Supreme Court

48 S.W. 898

66 Ark. 68

GAGE v. HARVEY

Supreme Court of Arkansas

December 24, 1898

Appeal from the Garland Circuit Court, ALEXANDER M. DUFFIE, Judge.

A Harvey filed his suit in the Garland circuit court against Vincent Gage, George Sargianovich, J. Kempner and David Beffa to recover $ 470, alleged to have been lost in a saloon or dram-shop managed by Gage for Sargianovich. The complaint alleges that in November, 1895, Sargianovich was the owner of a certain saloon in the city of Hot Springs; that on January 1, 1895, he procured a dram-shop license for the same from the county court of Garland county and executed a bond to the state, with J. Kempner and D. Beffa as his sureties; that on the 23d of November, 1895, Sargianovich had Gage in charge of said saloon as manager; that on said date Harvey became and was intoxicated in said saloon; that said intoxication was caused in whole or in part by liquor sold or given away at the bar by Gage; that Harvey, while in said saloon on that day, had on his person a large sum of money, which fact Gage well knew; that Gage took from Harvey's person, without his knowledge or consent, the sum of $ 470 in currency, and refused to return the same.

There was evidence tending to sustain the allegations of the complaint, and a verdict for the amount sued for was returned against all of the defendants, who have appealed.

Judgment reversed and affirmed.

Graves & Martin and Morris M. Cohn, for appellants.

This is a statutory action, based upon sections 4870 and 4873, Sand. & H. Dig. Such statutes are strictly construed. 70 Ill. 496; 71 Ill. 241; ib. 632; 72 id. 540; 4 Hun, 773. The evidence must be confined to the pleadings. 77 Ill. 109. No such action existed at common law. 44 Ia. 19; 55 Ark. 52; 30 Wis 344; 11 Ind. 64. The section providing for the bond and that giving the general cause of action are to be construed together. 33 Wis. 107. The statute does not protect the one whose intoxication is the alleged basis of recovery. 44 Mich 617; 8 Hun, 112; 14 Bush, 538; 7 Tex. Civ. App. 158. The loss, to sustain an action in any event, must have been proximately caused by intoxication from liquor sold by defendant. 53 Ind. 517; 54 id. 559; 84 Ill. 195; 83 id. 56; 37 Minn. 345; 3 Ill.App. 375; 80 Ala. 505; 86 Ga. 177; Cooley, Torts, 68, 69. The court's instructions assume the truth of facts which legitimately belong to the jury; hence they are erroneous. 14 Ark. 295; id. 537; 18 id. 525; 20 id. 188; 23 id. 411; 24 id. 543; 34 id. 702; 36 id. 125; 45 id. 263.

Wood & Henderson, for appellees.

The question, what was the proximate cause of the appellee's loss, was for the jury. 62 N.W. 891. The fact that appellee drank at other places is not material. 77 Ill. 126; 42 N.W. 751; 27 O. St. 259; 25 Am. Rep. 362. Appellee is a person "aggrieved," within the meaning of the law. Sand. & H. Dig. § 4873; 62 Ark. 374. The legislature has a right to provide a remedy for damages occasioned by liquor sales. 43 Ark. 364; 45 Ark. 356.

OPINION

BATTLE, J.

The question in this case is, can one who becomes intoxicated upon liquor sold to him in a saloon or dram-shop by the keeper thereof or his agents, and thereby incapacitated to hold and take care of his money, and who, while in that condition, loses it by having it forcibly or without his knowledge or consent taken from his pockets by some person, maintain an action against the keeper and the sureties on his bond to recover the money so taken?

This question arises under section 4870 of Sandels & Hill's Digest, which provides: "Each applicant for a dramshop or drinking saloon license * * * shall enter into bond to the state of Arkansas, in the penal sum of two thousand dollars, conditioned that such applicant will pay all damages that may be occasioned by reason of liquor sold at his house of business, which bond shall have two good securities thereto, to be approved of by the court;" and under section 4873 which reads as follows: "Any person aggrieved by the keeping of said dram-shop or drinking saloon * * * may have an action on said bond against the principal and securities for the recovery thereof."

The answer to the question obviously depends upon the meaning of the words, "conditioned that such applicant will pay all damages that may be occasioned by reason of liquor sold at his house of business," which are used in section 4870. They should be construed according to the general rule fixing the limit of the liability of parties for the consequences of their acts in other cases, as they in no way indicate an intent to make the liability of the saloon keeper an exception to such rule. According to their legal effect, they bind him to pay all damages that may be the natural and proximate result of the use or consumption of liquor sold by him or his agents at his place of business. Further than this the law does not extend the liability on his bond on account of the sale of liquor. As said by Lord Bacon: "It were infinite for the law to consider the cause of causes, and their impulsion one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." Bacon's Maxims, Reg. 1; Broom's Legal Maxims, 165.

The material inquiry in this case is, therefore, whether the use or consumption of the liquor sold by the keeper or his agents at his place of business was the proximate cause of the loss of the money mentioned in the question propounded.

In determining whether an act of a defendant is the proximate cause of an injury, the rule is that the injury must be the natural and probable consequence of the act--such a consequence, under the surrounding circumstances of the case, as might and ought to have been foreseen by the defendant as likely to flow from his act; the act must, in a natural and continuous sequence, unbroken by any new cause, operate as an efficient cause of the injury. If a third person intervenes between the act of the defendant and the injury, and does a culpable act, for which he is legally responsible, which produces the injury, and without it the injury would not have occurred, and the act of the defendant furnished merely an occasion for the injury, but not an efficient cause, the defendant would not be liable. For no one is responsible for the independent wrong of a responsible person to whom he sustains no relation which makes him liable for his wrong independent of an actual participation therein or connection therewith, as, for instance, the master for the acts of the servant in the scope, course or range of his employment.

Mr Wharton states the doctrine in question and answer as follows: "Supposing that, if it had not been for the intervention of a responsible third party, the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative; for the...