Lautenschlager v. Walgamott

• Decision Date: 25 January 1923
• Docket Number: No. 11375.,11375.
• Citation: 80 Ind.App. 198,137 N.E. 781
• Parties: LAUTENSCHLAGER v. WALGAMOTT et al.
• Court: Indiana Appellate Court

80 Ind.App. 198

137 N.E. 781

LAUTENSCHLAGER

v.WALGAMOTT et al.^*

No. 11375.

Appellate Court of Indiana, Division No. 2.

Jan. 25, 1923.

Appeal from Circuit Court, Owen County; James B. Wilson, Special Judge.

Action by Rhoda Walgamott and others against Christian P. Lautenschlager. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hickam & Hickam, of Spencer, and Hubert Hickam, of Indianapolis, for appellant.

Homer Elliott, of Martinsville, and Joseph E. Henley, of Bloomington, for appellees.

NICHOLS, C. J.

Action by appellees against appellant for damages. It is averred in the complaint, in substance, that prior to January 28, 1918, Nick Walgamott, now deceased, lived with appellees, his wife and children, and supported and maintained them, and they were each and all wholly dependent upon him for their support and maintenance; that on said day, and for many years prior thereto, appellant was and had been conducting a retail drug store in the town of Patricksburg, Owen county, Ind., and on said day and prior thereto was engaged in selling intoxicating liquors at retail; that for a number of years prior to said date said Walgamott had been addicted to the use of alcoholic liquors, and when under the influence of such liquors was quarrelsome, abusive, and dangerous to all persons with whom he came in contact, and that when once started to drinking his appetite became uncontrollable, and it was not safe at such times to furnish him with or permit him to have liquor in his possession for any purpose. Appellant on said day, and for a long time prior thereto, had full knowledge of said Walgamott's intemperate habits, and that he had an uncontrollable appetite for whisky, and that said Walgamott was quarrelsome, abusive, and dangerous when under the influence of such liquors; that for some days prior to the said January 28, 1918, said Walgamott had been drinking and had been making frequent trips to appellant's drug store, and had been purchasing liquor from time to time, which liquor he drank as a beverage, and from which he became drunken and intoxicated, and remained so until and including the said January 28, 1918; that while yet in a drunken condition said Walgamott left his home and went to Patricksburg, and upon his arrival there went again to appellant's drug store, and while in an intoxicated condition solicited him to sell him whisky; that appellant at the time of the request knew, or should have known, that said Walgamott was intoxicated, and an unsafe person to be intrusted with intoxicating liquor, and that if further liquor was furnished to him he would drink the same and become further intoxicated, and would, as a result thereof, become quarrelsome and dangerous, but, notwithstanding these facts, appellant did then and there unlawfully sell and furnish to the said Walgamott two quarts of whisky; that said Walgamott proceeded forthwith to drink said whisky, whereby he became so extremely drunken and intoxicated as to become irritable, quarrelsome, crazed, and frenzied, and while in such drunken, crazed, and frenzied condition, caused and brought about solely by appellant's wrongful and unlawful conduct in selling and furnishing said liquor, said Walgamott did then and there commit a felonious assault upon the person of one Beecher, by striking him in the head with a hatchet; that afterward, and on the same day, the said Walgamott was arrested and lodged in the Owen county jail, charged with having committed such felonious assault, where he remained for two weeks or more; that at the time of such arrest and imprisonment the weather was extremely cold, and the ground was covered with a deep snow, and that appellee Rhoda Walgamott, who was at the time in delicate health, was obliged to go to the fields and gather corn for more than a dozen head of cattle and horses, to procure fuel for the family fire, and in divers other ways expose herself to the winter weather, whereby she was injured in health and made to suffer great pain; that afterwards, at the March term, 1918, of the Owen circuit court, said Walgamott was found guilty of the felonious assault aforesaid, and was sentenced to the Indiana State Prison, where he remained about four and one-half months, or until he was paroled on account of failing health; that by reason of such felonious assault, and the subsequent conviction and imprisonment therefor, all of which was caused solely and proximately by the said wrongful conduct of appellant, appellees were deprived of the comfort, society, support, and maintenance of the said Walgamott from said January 28, 1918, until October 11, 1918; that prior to said January 28,...