Homire v. Halfman

• Decision Date: 18 April 1901
• Citation: 156 Ind. 470,60 N.E. 154
• Parties: HOMIRE v. HALFMAN.
• Court: Indiana Supreme Court

156 Ind. 470

60 N.E. 154

HOMIRE

v.HALFMAN.

Supreme Court of Indiana.

April 18, 1901.

Appeal from circuit court, Clinton county; James V. Kent, Judge.

Action by Martha A. Homire against John H. Halfman for the loss of support of plaintiff's husband, alleged to have been caused by the illegal sale of liquor.From a judgment in favor of defendant, plaintiff appeals.Reversed.

Reed Holloman, Henry C. Ulen, Jr., and Wm. A. Staley, for appellant.

DOWLING, C. J.

Action for damages alleged to have been sustained by appellant by reason of having been deprived of her means of support by the wrongful act of the appellee.The complaint was in a single paragraph, to which a demurrer was sustained for want of facts.Judgment for appellee followed.The error assigned presents the question of the sufficiency of the complaint, the material allegations of which were as follows: That on August 8, 1892, the plaintiff was married to Fred Homire, and has ever since been, and now is, his legal wife; that as such wife she was dependent upon her said husband for her support and maintenance prior to and until June 8, 1898; that on June 8, 1898, the defendant, John H. Halfman, who was then and there engaged in selling, bartering, and giving away intoxicating liquors in the city of Lebanon, Ind., and engaged in what is commonly known as the “saloon business,” did then and there wrongfully and unlawfully sell to, give away to, barter, and furnish to the plaintiff's said husband a quantity of intoxicating liquor, plaintiff's said husband being then and there in a state of intoxication, as the said defendant then and there knew at the time when he furnished such liquor to the said Fred Homire; that said intoxicating liquor so sold, given away, bartered, and furnished to the said Fred Homire by the said defendant was drunk by the said Homire, said plaintiff's husband, from the effects of which he became so extremely intoxicated as to be irritable, crazed, and frenzied; that while in such irritable, crazed, and frenzied condition plaintiff's said husband went from defendant's place of business in said city to the home in said city where plaintiff's said husband, together with this plaintiff and one Seth Nease, then and there resided; that upon arriving at said home in such irritable, frenzied, and crazed condition, plaintiff's husband procured a revolver pistol, loaded with gunpowder and leaden balls, and did then and there, while in such irritable, frenzied, and crazed condition, so caused by defendant's wrongful and unlawful sale and furnishing of said intoxicating liquors to the said Fred Homire, wrongfully, purposely, unlawfully, and feloniously shoot and discharge said revolver pistol at and against the body of the said Seth Nease, then and there and thereby inflicting upon the person of the said Seth Nease a mortal wound, from which mortal wound, caused as aforesaid, the said Seth Nease then and there died; that afterwards, on said day, the plaintiff's husband was arrested by the officers of the law, charged with said killing, and confined in the county jail of Boone county, Ind.; that afterwards, on the ----- day of June, the said Fred Homire was indicted by the grand jury of the Boone circuit court of Boone county, Ind., at the April term, 1898, thereof, charged with murder in the first degree in the killing of said Seth Nease; that on the ----- day of June, 1898, the said Fred Homire entered upon his trial on said indictment in the Boone circuit court; that afterwards, on the ----- day of July, 1898, the jury in said cause returned a verdict into open court finding the said Fred Homire guilty of murder in the first degree, and assessing his punishment at imprisonment in the state's prison during the term of his natural life; that afterwards, on July 5, 1898, the said Boone circuit court rendered judgment upon said verdict, and adjudged that the said Fred Homire be confined in the state's prison of Indiana during the term of his natural life; that on the ----- day of July, 1898, the said Fred Homire, in pursuance of said judgment, was removed by the sheriff of Boone county from the jail of that county to the state's prison in the county of Laporte, there to remain during the term of his natural life; that by reason of such confinement of the said Fred Homire, the plaintiff's said husband, the plaintiff has not been since June 8, 1898, is not now, and will never again be, able to be supported and maintained by her said husband; that on said June 8, 1898, the said Fred Homire was of sound body and mind, and was 52 years of age; that by reason of the matters stated the plaintiff has been greatly and permanently injured in her means of support to her damage $20,000; that said injuries were caused by and resulted from the defendant's wrongful act in selling, etc., intoxicating liquors to the plaintiff's husband while in a state of intoxication.

The action is founded upon section 20 of “An act to regulate and license the sale of spirituous, vinous and malt and other intoxicating liquors,” etc., approved March 17, 1875, which is as follows: “Every person who shall sell, barter, or give away any intoxicating liquor in violation of any of the provisions of this act, shall be personally liable, and also liable on his bond filed in the auditor's office, as required by section 4 of this act, to any person who shall sustain any injury or damage to his person or property, or means of support, on account of the use of such intoxicating liquors, so sold as aforesaid, to be enforced by appropriate action in any court of competent jurisdiction.”Burns'Rev. St. 1894, § 7288;Rev. St. 1881, § 5323.Section 15 of said act of 1875 is in these words: “Any person who shall sell, barter, or give away any spirituous, vinous or malt liquors to any person at the time in a state of intoxication, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than ten or more than fifty dollars.”It was held by this court in Mulcahey v. Givens, 115 Ind. 286, 288, 17 N. E. 598, that section 20 is “to be construed as if it read: ‘Every person who shall barter or give away any spirituous, vinous, or malt liquors to any person at the time in a state of intoxication shall be personally liable and also liable on his bond * * * to any person who shall sustain any injury or damage to his person or property, or means of support, on account of the use of such intoxicating liquors.’As thus construed, the right to prosecute a civil action under that section for the sale of alcoholic liquors to a person in a state of intoxication was neither abridged nor taken away by the subsequent enactment of section 2092, above set out.”Upon the question before us...