Johnson v. Grondin

• Decision Date: 31 May 1912
• Parties: JOHNSON v. GRONDIN et al.
• Court: Michigan Supreme Court

170 Mich. 447
136 N.W. 423

JOHNSON
v.
GRONDIN et al.

Supreme Court of Michigan.

May 31, 1912.

Error to Circuit Court, Schoolcraft County; Horace M. Oren, Judge.

Action by Anna Johnson against Philip Grondin and another. There was a judgment for plaintiff, and defendants bring error. Affirmed.

Argued before MOORE, C. J., and STEERE, McALVAY, BROOKE, BLAIR, STONE, and OSTRANDER, JJ.

[136 N.W. 425]

L. H. Fead, of Newberry, F. T. McDonald, of Sault Ste. Marie, and A. F. Bunting, of Detroit, for appellants.

C. W. Dunton and V. I. Hixson, both of Manistique, and F. P. Sullivan, of Sault Ste. Marie, for appellee.

STONE, J.

This action is brought under the provisions of the civil damage law (Laws 1887, No. 313, § 20) against the keeper of a saloon and his bondsmen. The declaration consists of two counts. The first count alleges that on, to wit, May 1, 1909, and continuously from that time to the time of the commencement of suit which was on November 4, 1910, the defendant Philip Grondin was engaged in the business and occupation of selling spirituous and intoxicating liquors at retail in the township of Seney, in Schoolcraft county; and that to enable him to engage in said business he on, to wit, May 1, 1909, gave a duly executed bond in compliance with the law, upon which bond the defendant the Michigan Bonding & Surety Company became and was the surety; and that he on, to wit, May 1, 1910, to enable him to engage in said business, gave a like bond with the same surety; and that each of said bonds, so executed and given as aforesaid, was approved by the township board of the township of Seney; and that each of said bonds with the certificate of approval of said board was duly filed with the treasurer of said county, and a copy of each of said bonds was attached to and made a part of the declaration, and they were offered and received in evidence and are described in the record, the first one being Exhibit 1 as retail liquor dealer's bond in the form prescribed by statute in the penal sum of $3,000, signed by Philip Grondin as principal, and the Michigan Bonding & Surety Company as surety, covering the period from May 1, 1909, to April 30, 1910, at Grondin's hotel building in Seney, Schoolcraft county. Plaintiff's Exhibit 2 is described as a bond same as last above covering the period from May 1, 1910, to April 30, 1911.

The declaration alleges that the plaintiff had for 15 years last past been and remained the lawful wife of John Johnson, and that during said time they had lived and cohabited together at said township of Seney, where said Johnson had been engaged in the occupation of sectionman for a railroad company earning the sum of, to wit, $60 per month for such work.

The first count of the declaration further alleges that said John Johnson on, to wit, May 1, 1909, was, and since said time has remained, a person addicted to the use of spirtuous and intoxicating liquors, and in the habit of becoming intoxicated; and that said plaintiff on, to wit, the 1st day of May, 1909, notified the said Philip Grondin to cease and refrain from selling, giving, or furnishing said John Johnson with spirituous or intoxicating liquors, which said request so made by said plaintiff was thereafter frequently repeated; and that on, to wit, December 1, 1909, the said plaintiff served upon said Philip Grondin a written notice forbidding him, the said Philip Grondin, to sell, furnish, give, or deliver any spirituous or intoxicating liquors to the said John Johnson.

The declaration proceeds to allege that, despite the notices, both verbal and written, so served upon him by the plaintiff, the said Grondin did frequently after May 1, 1909, by himself, his servant, agent, or representative sell, give, and furnish to the said Johnson, at said defendant's saloon and place of business, large quantities of spirituous and intoxicating liquors which had continued from said time down to the commencement of this suit; and that by reason thereof said Johnson had frequently become intoxicated and spent large sums of money for intoxicating liquors in the said saloon and place of business of the said defendant.

It was further alleged that the money spent as aforesaid for intoxicating liquors by said Johnson in said saloon and place of business of said defendant Philip Grondin had taken the greater part of the earnings and wages of said husband of plaintiff, and that by reason thereof the said husband had since May 1, 1909, been unable to furnish plaintiff the necessary and usual means of support, raiment, food, and living, which was and is reasonably the plaintiff's due from the wages so earned and received by her said husband, and that the said husband of said plaintiff, by reason of said money so paid by him to said defendant Philip Grondin for intoxicating liquors, had failed and neglected to furnish the plaintiff with the necessary means of support, whereby and by reason of which the plaintiff had been injured in property and means of support in a large sum, to wit, $1,000.

The second count of the declaration, after the statement in the introductory part thereof-substantially the same as the first count as to the business of defendant Grondin and notice to him and the furnishing of liquors-alleges that plaintiff's said husband shortly after, to wit, May 1, 1909, and on other days and times between that date and the commencement of the suit, became drunk and intoxicated, and by being so intoxicated, or in consequence thereof, frequently on divers days and times assaulted, beat, wounded, and illtreated the plaintiff, caused her great bodily pain and suffering, called her vile and obscene names in the presence of her children, neighbors, and others, drove her from her home, threatened to take her life, and caused the plaintiff to suffer great and grievous anguish and care of body and mind, shame,

[136 N.W. 426]

mortification, and disgrace, depriving her of the society of her friends and acquaintances, and other wrongs to the plaintiff to her great damage to the amount of $2,000, all of which injuries were caused by the unlawful selling, giving, and furnishing and delivering of intoxicating liquors by said Philip Grondin to said John Johnson.

The trial of the case before a jury resulted in a verdict and judgment for the plaintiff in the sum of $750 damages and costs. The defendants have removed the case to this court, and there are 28 assignments of error in the record. We shall discuss such questions as are raised by defendants in their brief; the same appearing to be covered by assignments of error. (1) It is first claimed by defendant Bonding Company that no testimony should have been permitted to be introduced under the declaration for the following reasons: (a) The declaration does not sufficiently assign a breach of the bonds mentioned in the declaration whereby the defendants became liable to the plaintiff. (b) The plaintiff's declaration does not allege that the defendant Philip Grondin paid the tax and received the receipt from the county treasurer and posted up the notice required by the statute. (c) The plaintiff's declaration does not allege that the bonds mentioned in the declaration were signed, executed, and sealed by this defendant. (d) The plaintiff's declaration does not charge that the defendant Bonding Company was authorized under the statute to execute liquor bonds and do business thereon.

[1] 1. We do not think that there is any merit in the above objections. It appearing that the bonds were in the statutory form, the allegation of the sales and furnishing of liquors under the circumstances stated in the declaration constituted a sufficient allegation of a breach of the bonds.

[2] It being alleged that the defendant Philip Grondin duly executed the statutory bonds in compliance with the law, and that the Michigan Bonding & Surety Company became surety, and that the same...