State ex rel. Niece v. Soale

• Decision Date: 27 June 1905
• Docket Number: No. 5,413.,5,413.
• Citation: 36 Ind.App. 73,74 N.E. 1111
• Parties: STATE ex rel. NIECE v. SOALE et al.
• Court: Indiana Appellate Court

36 Ind.App. 73

74 N.E. 1111

STATE ex rel. NIECE

v.SOALE et al.

No. 5,413.

Appellate Court of Indiana, Division No. 2.

June 27, 1905.

Appeal from Circuit Court, Vigo County; James E. Piety, Judge.

Action by the state, on the relation of Wesley S. Niece, against Wilson H. Soale, administrator of Charles S. Markin, deceased, and others. From a judgment for defendants on sustaining a demurrer to the complaint, the relator appeals. Reversed.

Foley & Royse, for appellant. Wilson H. Soale, for appellees.

COMSTOCK, J.

This action was brought under section 7288, Burns' Ann. St. 1901, on a liquor dealer's bond executed under section 7279, Burns' Ann. St. 1901, against the principal and sureties on said bond, to recover for the damage to himself, alleged to have been caused by the principal by the sale of liquor to one Carrington and appellant's father, while they were both intoxicated, whereby it is alleged appellant's father was killed, and appellant injured in his means of support. A demurrer was sustained to the complaint, and, appellant refusing to plead further, judgment was rendered on the demurrer in favor of appellees for cost. Upon this ruling of the court the appellant asks that the judgment be reversed.

The amended complaint shows that after the commencement of the suit Charles S. Markin, the principal on the bond, died, and his administrator was substituted as defendant in his place. The bond is made part of the complaint by exhibit. The complaint alleges that Charles S. Markin sold intoxicating liquor to one Carrington while both Niece and Carrington were intoxicated, and that on account of said intoxication said Niece and Carrington quarreled, and Carrington shot and killed Niece; that said Wesley S. Niece was born two months after the death of his father, was dependent upon his said father for support; that his said father was able-bodied, in good health, and capable of earning the living of this relator. The bond was in the form required by section 7279, supra, and provided that Markin should keep an orderly and peaceable house, pay all fines and costs that might be assessed against him for any violations of the provisions of this act, and pay all judgments of civil damages growing out of unlawful sales that may be assessed against him. 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, 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.” Laws Sp. Sess. 1875, p. 59, c. 13; section 7288, Burns' Ann. St. 1894; section 5323, Rev. St 1881. Section 15 of said act (Acts Sp. Sess. 1875, p. 58, c. 13) 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 $10.00 nor more than $50.00.” It was held by the Supreme 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 sell, 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, Rev. St. 1881 (section 2188, Burns' Ann. St. 1894), as above set out, so that section 7288, supra, gives a remedy against the saloon keeper personally and against the saloon keeper and his sureties on his official bond, and the remedies are distinct, and the person has his choice between them. Wall v. State ex rel. Kendall, 10 Ind. App. 530, 38 N. E. 190;Brandt v. State ex rel. Boyer, 17 Ind. App. 311, 46 N. E. 682. The liability of the principal and sureties on the bond given under the provisions of section 7279, Burns' Ann. St. 1901, is not destroyed by the death of the principal. Moriarty v. Bartlett, 34 Hun, 272. The act alleged to have caused the breach of the contract is an act for which the wrongdoer may also be liable ex delicto. In Homire v. Halfman, 156 Ind. 470, 60 N. E. 154, in which numerous cases are collected upon the various questions arising upon the statute under consideration, the Supreme Court held that, where a saloon keeper sold intoxicating liquors to a person who was at the time intoxicated, in consequence of which sale the latter became so crazed that he committed murder, and was sent to the penitentiary, the wife of the intoxicated person may maintain an action against the saloon keeper, under sections 15 and 20 of the act of 1875 (Acts Sp. Sess. 1875, pp. 58, 59, c. 13), for the loss of means of support. That an infant is deprived of its means of support by the wrongful killing of its father must be conceded. Wall v. State ex rel. Kendall, supra; Brandt v. State ex rel. Boyer, supra.

It follows that it only remains to determine whether an infant born two months after the death of its father is injured by such wrongful killing. In support of the proposition that the beneficiary in the case at bar cannot maintain an action for injury received by him before birth appellee cites Allair v. St. Luke's Hospital, 56 N. E. 638, 184 Ill. 359, 48 L. R. A. 225, 75 Am. St. Rep. 176;Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 422; Patrick Gorman, as Next Friend of Patrick Gorman, Deceased, v. Budlong (R. I.) 49 Atl. 704, 55 L. R. A. 118, 91 Am. St. Rep. 629. In Allair, an Infant, by His Next Friend, v. St. Luke's Hospital and Others, supra, the mother of the infant and the unborn infant were injured by an elevator in a hospital in which the mother was a patient. In 10 days for the natural birth of the plaintiff, the mother became a patient. The court held that at the time of the alleged injury the plaintiff was a part of his mother, and that an action could not be maintained. The court refers to Dietrich v. Northampton, supra. In that case the mother was advanced four or five months in pregnancy, and slipped and fell by reason of a defect in the highway, the consequence of which was a miscarriage. Plaintiff was alive when delivered, but was too little advanced in fœtal life to survive. Action was brought by administrator of deceased infant under the statute authorizing an action for the benefit of the mother or next of kin. The trial and supreme courts both held that the action could not be maintained, the latter saying: “Taking all the foregoing considerations into account, and, further, that, as the...