Jackson County v. Schmid

• Citation: 141 Mo. App. 229,124 S.W. 1074
• Parties: JACKSON COUNTY v. SCHMID et al.
• Decision Date: 24 January 1910
• Court: Court of Appeal of Missouri (US)

124 S.W. 1074

141 Mo. App. 229

JACKSON COUNTY v. SCHMID et al.

Kansas City Court of Appeals. Missouri.

January 24, 1910.

Rehearing Denied February 7, 1910.

1. INTOXICATING LIQUORS (§ 178) — PENALTIES — NATURE OF REMEDY.

Rev. St. 1899, § 3017 (Ann. St. 1906, p. 1728), imposing a penalty for selling liquors to a drunkard after notice by his wife not to do so, is not a penal statute, but is highly remedial, and should be liberally construed.

2. INTOXICATING LIQUORS (§ 179) — PENALTIES — GROUNDS OF ACTION — SALE TO DRUNKARD — "NOTICE."

The word "notice," as used in Rev. St. 1899, § 3017 (Ann. St. 1906, p. 1728), imposing a penalty for selling liquors to a drunkard after notice from his wife not to do so, is synonymous with information, intelligence, or knowledge, and oral notice to the managing agent of the dramshop keeper is sufficient.

3. PRINCIPAL AND AGENT (§ 177) — NOTICE TO AGENT.

A principal is affected with knowledge of all material facts of which the agent receives notice while acting in the course of his employment and within the scope of his authority.

4. INTOXICATING LIQUORS (§ 179) — PENALTIES — GROUNDS OF ACTION — SALE TO DRUNKARD — NOTICE.

A notice, given under Rev. St. 1899, § 3017 (Ann. St. 1906, p. 1728), imposing a penalty for selling liquor to a drunkard after notice from his wife not to do so, need not state that the person is a drunkard, when the reason for the notice is known to the seller.

5. INTOXICATING LIQUORS (§ 179) — PENALTIES — GROUNDS OF ACTION — "HABITUAL DRUNKARD."

An "habitual drunkard," as used in Rev. St. 1899, § 3017 (Ann. St. 1906, p. 1728), imposing a penalty for selling to such a person after notice from his wife not to do so, is a person given to inebriety or the excessive use of intoxicating drinks to the extent that he has lost the power or will, by frequent indulgence, to control his appetite.

Appeal from Circuit Court, Jackson County; W. A. Powell, Judge.

Action by Jackson County, on the relation of Stella Farley, against John Schmid and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

Aleshire, Hardin & Gundlach, for appellant. F. V. Kander and Olney Burrus, for respondents.

JOHNSON, J.

This suit is prosecuted by a married woman against a dramshop keeper and his bondsmen to recover damages for the sale of intoxicating liquor to her husband, an habitual drunkard. The petition is in four counts, but two were dismissed at the trial and the verdict was rendered on the remaining two, viz., the first and the fourth. Afterward the court sustained a motion for a new trial filed by defendant, on the ground of "error in giving instructions for plaintiff and in refusing instructions for defendant." Plaintiff appealed from the order and judgment granting a new trial.

Defendant was a licensed dramshop keeper, in business at Sheffield, near Kansas City, but lived on a farm about two miles from his dramshop. The evidence of plaintiff tends to show that on account of ill health, defendant spent most of his time on the farm, and intrusted the management of the dramshop to his son; that the husband of plaintiff was an habitual drunkard, who spent much of his time and wages in defendant's dramshop; that plaintiff went to the place while her husband was there drinking, and orally notified the defendant's son, who was there in charge of the business, not to sell her husband liquors, and that afterwards, on the occasions alleged in the first and fourth counts of the petition, sales of intoxicating liquors were made to the inebriate husband, despite the notice.

The evidence of defendant differs in important respects from that of plaintiff, but the questions of law we are called upon to decide require us to consider the facts in the light most favorable to plaintiff. The part of the instructions given at the request of plaintiff which the court at the hearing of the motion for a new trial found to be erroneous is as follows: "If they [the jury] believe from the evidence * * * that Stella Farley verbally notified the defendant or John Schmid, his son, if they find from the evidence he was his agent in charge of his said saloon, * * * not to sell, give away, or otherwise dispose of to the said William S. Farley any intoxicating liquors, and that afterwards the said John Schmid, or his agents in charge of his saloon and dramshop * * * did sell," etc. The question in controversy is whether or not oral notice to the managing agent in charge of defendant's business was notice to defendant within the meaning of section 3017, Rev. St. 1899 (Ann. St. 1906, p. 1728). The material portion of that statute is that: "Any dramshop keeper * * * selling, giving away or otherwise disposing of or suffering the same to be done about his premises, any intoxicating liquors to any habitual drunkard after such dramshop keeper * * * shall have been notified by the wife * * * not to sell * * * to such person * * * shall forfeit and pay to such wife * * * for every such offense a sum not less than fifty nor more than five hundred dollars to be recovered by the party entitled to sue by civil action. * * * A notice given under this section shall be deemed a continuing notice to the person notified."

Defendant invokes the rule that "where the statute requires notice without prescribing the method of service, personal notice is intended" (Ryan v. Kelly, 9 Mo. App. 396; Doyle v. Railway, 113 Mo., loc. cit. 285, 20 S. W. 970; City v. Gallie, 49 Mo. App., loc. cit. 397), and points to the case of Eilke v. McGrath, 100 Ky. 537, 38 S. W. 877, decided by the Court of Appeals of Kentucky, as an authority directly...