Massachusetts Bonding & Ins. Co. v. State ex rel. Gary

• Decision Date: 31 May 1921
• Docket Number: No. 23974.,23974.
• Citation: 191 Ind. 595,131 N.E. 398
• Court: Indiana Supreme Court
• Parties: MASSACHUSETTS BONDING & INS. CO. et al. v. STATE ex rel. GARY et al.

191 Ind. 595

131 N.E. 398

MASSACHUSETTS BONDING & INS. CO. et al.

v.STATE ex rel. GARY et al.

No. 23974.

Supreme Court of Indiana.

May 31, 1921.

Appeal from Circuit Court, Knox County; B. M. Willoughby, Judge.

Action by the State of Indiana, on the relation of Addie Gary and others, against the Massachusetts Bonding & Insurance Company and another. From a judgment for plaintiff, defendants appeal. Transferred from the Appellate Court under subdivision 2, § 1394, Burns' Ann. St. 1914. Affirmed.

Superseding former opinions 126 N. E. 84;127 N. E. 283.Bailey & Young, of Indianapolis, and Padgett & Clark, of Vincennes, for appellants.

Charles E. Henderson, of Indianapolis, and Alfred M. Beasley, of Linton, for appellee.

MYERS, J.

This was an action on a retail liquor license bond by the state of Indiana upon the relation of appellees, the widow and children of William T. Gary, deceased, against appellants to recover damages for loss of support.

It appears from the first paragraph of the complaint that appellant Alvin Booker was duly licensed and engaged in the sale of intoxicating liquor at White Rose in Greene county; that he executed the usual retailer's liquor bond with appellant the Massachusetts Bonding & Insurance Company as surety thereon; that on January 13, 1914, Booker unlawfully sold intoxicating liquor to Gary, who was then and there, as Booker well knew, in a state of intoxication, and who, on drinking this liquor, became crazed and unconscious of his surroundings, and while in this condition, to the knowledge of Booker, he attempted to walk home, and in so doing wandered upon the railroad tracks of the Vandalia Railroad Company where he was struck by one of its trains and killed.

The second paragraph states substantially the same facts as the first, except that it alleges that the unlawful sale was made by Booker's bartender and agent.

By a demurrer to each paragraph of the complaint, it was urged that plaintiffs had no legal capacity to maintain this action, and that neither paragraph, separately considered, stated facts sufficient to constitute a cause of action. Answer in denial, trial, verdict, and judgment on the verdict for $3,500. The overruling of the demurrer to each paragraph of the complaint and the overruling of appellants' motion for a new trial are the only errors assigned.

[1] As shown by the complaint the bond in this case was payable to the state of Indiana and was given in compliance with section 4, Acts 1911, p. 244; section 8323g, Burns' 1914. As to appellants' first ground of demurrer, it is sufficient to say that this action was properly brought in the name of the state of Indiana on the relation of the persons who sustained the damage. Section 253, Burns' 1914; Wall v. State ex rel., 10 Ind. App. 530, 38 N. E. 190;State ex rel. v. Soale, Adm'r, 36 Ind. App. 73, 74 N. E. 1111.

[2] The allegations of the complaint show that the sales made to the husband and father of appellees were in violation of section 573, Acts 1905, p. 584; section 2484, Burns' 1914. The first paragraph of the complaint charged Booker, and the second, Booker by his bartender and agent, with the violation of a positive law in knowingly selling to Gary intoxicating liquor while he was in a state of intoxication. As required by section 4, supra, the bond given by Booker was made payable to the state of Indiana and conditioned “for the payment of all judgments or civil damages growing out of unlawful sales of intoxicating liquor or other unlawful conduct on his (Booker's) part in and about said business.” Appellees, the widow and children of the deceased, as dependents and in the consideration of damages, were parties interested (section 253, supra) in the death of Gary alleged to have been caused by the unlawful sales of liquor to him by Booker, and as “every action must be prosecuted in the name of the real party in interest, except as otherwise provided” (section 251, Burns' 1914), we hold that the action for damages, as set forth in the complaint herein, was authorized by law, and that the complaint and each paragraph thereof was otherwise sufficient to repel the demurrer for want of facts. Beem v. Chestnut, 120 Ind. 390, 22 N. E. 303;Homire v. Holfman, 156 Ind. 470, 60 N. E. 154;State ex rel. v. Terheide, 166 Ind. 689, 78 N. E. 195;Greener v. Niehaus, 44 Ind. App. 674, 89 N. E. 377.

The only specifications in the motion for a new trial relied on by appellants for a reversal of the judgment, an appears from their brief under the heading of “Points and Authorities,” require us to consider instructions 2 and 3 given by the court at the request of plaintiffs; instruction 7 given by the court on its own motion; the court's refusal to give instruction 10 requested by the bonding company; and the admission in evidence over appellants' objection of copies of certain records and other instruments as certified by the auditor of Greene county.

The record affirmatively shows that instruction 10 was given by the court. In fact, all of the instructions, 18 in number, tendered by and on behalf of the bonding company, were given by the court except instruction 13. The questions discussed, with reference to the asserted objectionable instructions, pertain to the theory of the defense which was that prior to the alleged sale of intoxicating liquor, Booker had sold his saloon including his stock of liquors, furniture, and fixtures to one Callahan, who had taken possession of the same and was running it on his own account, and that Booker, at the time the liquor was sold to Gary, had no interest or connection with the business whatever. To that contention appellees insist that under the evidence the jury was clearly authorized to find that such pretended sale by Booker to Callahan was a mere sham, and that in fact no sale was consummated until some time after the illegal sales charged in the complaint were made.

It appears from the undisputed testimony of Booker that prior to the alleged unlawful sales of liquor to Gary, he agreed to and did sell his stock of liquors, his furniture and fixtures, to Callahan; that he turned over to Callahan the keys to the building and put him in possession of the place described in his license, knowing that Callahan intended to continue the saloon business at that place. There was evidence also tending to show that as a part of the bargain Booker agreed to transfer his license to Callahan, which was eventually done in the manner prescribed by statute, but not until after the death of Gary. There was also evidence from which the jury might properly have inferred an agreement between Booker and Callahan that the latter should operate the place as Booker's agent and under Booker's license until such license could be legally transferred to Callahan; that Booker frequently waited on customers from the time of the claimed property sale until the day of the alleged unlawful sale of liquor; and that one Hudson was Booker's bartender prior to the asserted sale to Callahan, and thereafter continued in the business as bartender and sold the liquor to Gary.

As pertinent to the facts and the evidence from which the inferences mentioned might readily have been drawn, the court by instruction 2 charged the jury, in effect, that if the place was conducted as a saloon by Callahan under Booker's license, and prior to the transfer thereof, with the full knowledge, permission, consent and acquiescence of Booker, then there was not such a sale and transfer of the saloon business as would relieve Booker from liability on his bond. And by instruction 3, in so far as the same is material to any question raised, the jury, in effect, were told that if from the evidence it appears that through an intended sale the business was to be transferred to Callahan, but that no proceedings were had before the board of commissioners authorizing the sale and transfer before the death of Gary, and that Hudson had been the agent of Booker, and thereafter continued to conduct it with the full knowledge and consent of Booker, and had made the unlawful sales to Gary, then you would have the right to find as a fact that Hudson was the agent of Booker in making the alleged sales of liquor.

The objection to these instructions collectively was that they informed the jury as a matter of law that a saloon keeper could not sell his fixtures and stock without first getting the consent of the board of county commissioners to sell the license to the same purchaser. We are not persuaded that the jury would so understand these instructions. It is apparent from the language used that the jury were thereby informed that a sale depending upon the action of the board of commissioners transferring the license of Booker to Callahan would, in law, not be such a sale as would relieve the seller from the responsibility of the acts of those by him placed in charge of the business under his license prior to the consummation of the sale.

[3][4] As to instruction 3, it is further urged that it tended to confuse the jury, in that it was so worded as to leave the jury in doubt as to whether it was necessary to have the consent of the board of commissioners to a sale of the business, or to the transfer of the license, or to both. This instruction is justly subject to the criticism suggested, and for that reason it must be disapproved. Whether this instruction will justify a reversal of the judgment in this case is another question. Instructions to the jury are to be considered as an entirety, and if by so doing, or from the entire record, it affirmatively appears that the substantial rights of the complaining party would not be prejudiced by the challenged instruction, a reversal of the judgment for that reason alone will not be ordered, although such instruction, when separately considered, may appear to be objectionable. Indianapolis St. Ry. Co. v. Schomberg, 164 Ind. 111, 72 N. E. 1041;Inland Steel Co. v. Ilko, 181 Ind. 72, 103 N. E. 7;...