State v. Hailar

• Citation: 203 S.W. 664,199 Mo. App. 470
• Decision Date: 20 May 1918
• Docket Number: No. 12857.,12857.
• Parties: STATE ex rel. and to Use of HAYES v. HAILER et al.
• Court: Court of Appeal of Missouri (US)

203 S.W. 664

199 Mo. App. 470

STATE ex rel. and to Use of HAYES v. HAILER et al.

No. 12857.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

1. INTOXICATING LIQUORS — BONDS OF SALOON KEEPERS — RIGHT OF RECOERY.

Rev. St. 1909, § 7198, providing for forfeiture of saloon keeper's bond, section 7213, providing penalty for sale of liquor to minors and section 7223, providing penalty for sale of liquor to habitual drunkards, do not attempt to cover recovery on bond of saloon keeper by one damaged by his failure, as required in the bond under section 7196, to keep an orderly house, and such person may therefore recover on the bond.

2. INTOXICATING LIQUORS — RIGHT TO SUE—SALOON KEEPER'S BOND — "REAL PARTY IN INTEREST."

One injured by saloon keeper's failure to keep an orderly house, as required by bond given under Rev. St. 1909, § 7196, was the real party in interest and could sue, as relator, on the bond in view of section 1729, requiring suits to be by the real parties in interest.

3. INTOXICATING LIQUORS — BONDS OF SALOON KEEPERS—LIABILITY.

Where saloon keeper had saloon, restaurant, and kitchen in one building, but in connecting rooms, which he ran as one business, serving liquors in all three rooms, to the knowledge of his bondsmen, the bond "to keep an orderly house" covered the entire business and all the rooms it occupied.

Appeal from Circuit Court, Pettis County; Hopkins B. Shain, Judge.

Action by the State, at the relation and to the use of Peter H. Hayes, against W. J. Hailer and others. Judgment on verdict for plaintiff, and defendants appeal. Affirmed.

C. C. Kelly, of Sedalia, for appellants. Holmes Hall and G. W. Barnett, both of Sedalia, for respondent.

TRIMBLE, J.

This is an action in the name of the state by relator on defendant Hailer's bond as a dramshop keeper; the defendants Moerschel and Urban being sureties thereon. There was a verdict and judgment for $150, and defendants have appealed.

The petition charges a breach of the bond on the part of said Hailer, and seeks to recover damages accruing to relator by reason of being injured on account of the failure to keep an orderly house, in that said dramshop keeper's bartender Lopp, while engaged in his duties as bartender and in serving drinks in the barroom proper and in the adjacent rooms, alleged to be a part of the saloon, violently and without provocation assaulted relator, Hayes, by seizing him by the throat and beating him in the face, cutting a gash over his eye and otherwise injuring him, and at the same time cursing and abusing him and applying to him vile and profane epithets; all being done while said Hayes was behaving himself in a peaceable and orderly manner and without having been requested to leave the saloon. The petition further alleged that said assault was committed in the presence of said Hailer, but that he did not undertake to interfere with his said barkeeper in the latter's disorderly and inhuman conduct, and tacitly approved thereof and continued the said barkeeper in his employ, although requested to disavow said disorderly acts and to discharge said barkeeper from his employ on account of said disorderly conduct and brutal outrage upon an inoffensive man.

There is no dispute over the fact that the assault was committed. Liability is denied on the ground that relator cannot sue the sureties on the dramshop bond for a violation thereof, even though the relator be the party receiving direct, special, and personal injury thereby. The defendants further claim that the assault and general disturbance arising therefrom took place either in the restaurant or kitchen attached to the saloon and not in the barroom proper, and that the bondsmen are not liable for disorder therein. The evidence in relator's behalf amply tends to support his claim that the assault was begun in the barroom proper; the barkeeper commencing to beat relator in there and continuing to beat him after forcing him through the opening into the adjacent room. But as this was disputed, and as the trial court instructed the jury that under the conceded facts the adjacent rooms called the restaurant and kitchen were all a part of the dramshop and covered by the bond, it will be necessary to pass upon the propriety of this instruction if the other contention of defendants is found to be unavailing.

The conceded facts with reference to the saloon and restaurant, the conduct and management of the business, and the arrangement of the building in which it is housed, are as follows:

The saloon and restaurant had been run in connection and as one business enterprise for a great many years, having been handed down to the present proprietor from his father. It was housed in a building which was separate and apart from other buildings, and fronted north on East Third street. Across the entire front of the building was a large sign: "Hailer's Saloon and Restaurant." Partitions divided the ground floor into three rooms running north and south; the barroom proper being on the east side; the two others having tables therein at which lunches were eaten and drinks from the barroom were sold. Toward the rear or south end of the rooms were doorways in the partitions which were kept constantly open so as to afford free and open communication at all times between the barroom proper and the parts called restaurant and kitchen. At the rear or south end of the barroom was a toilet and at the south end of the restaurant portion a part was partitioned off into what is called the kitchen, but it also had tables therein the same as the part called restaurant. There was also an opening into it affording easy access thereto from the barroom and restaurant. Parties seated at tables were served with lunches, and also with drinks brought from the barroom. Said drinks were served by the barkeeper, and he collected the money therefor at the tables where they were served and drunk. In the restaurant room at the south end next to the kitchen was a lunch counter at which sandwiches could be obtained, and in the barroom proper was a smaller counter where they could also be had, though defendants' testimony conflicts with plaintiff's on this last point, namely, as to whether there was a lunch counter in the barroom proper. There is, however, no controversy over the fact that the barkeepers prepared drinks at the bar, took them into the restaurant room and kitchen, served them to the patrons seated at the tables, and collected the money for such drinks at the tables. Patrons testified to this, and defendant Hailer's barkeeper testified that he was barkeeper for Mr. Hailer; that he consider" ed it a part of his business to go into the restaurant or kitchen. "I was in there to help take care of the place. I was interested in there because I was in Mr. Hailer's employment." One of the defendant sureties on the bond testified, "I have drank lots of times in the restaurant room;" and it was conceded that the other surety would testify the same way. The first-mentioned surety also testified that he had "not drank in the back room called the kitchen on many days." He further said he might have, but he did not think he ever sat at the table and drank; he was not in the habit of going in the kitchen. He did not think he bad ever had liquor served to him at the tables in the kitchen.

Relator was, at the time in question, a reporter for a paper in Sedalia, and was accompanying a number of government officials visiting the city that day. The party entered the barroom proper and relator asked defendant Hailer if they could have a table. The proprietor assented and led them through the opening into the part called kitchen and seated them at a table. They sat here for a few minutes during which time drinks were ordered and, according to the evidence in plaintiff's behalf, were brought from the bar to the table where the party sat, and they were paid for at the table. The barkeeper Lopp, who committed the assault, Genies that he served the drinks to this particular party, but says another of defendant Hailer's barkeepers did. After a round or so of drinks were thus served, some one suggested sandwiches, and relator, acting) somewhat as entertainer for the visitors, went into the room where the bar was to order them. After they were served, it was found that there was one sandwich lacking, in order to provide one for each member of the party. Relator again went back into the barroom proper to get the additional sandwich. The barkeeper Lopp, because of his dislike for relator and because the latter was in his way in carrying drinks into the rooms from the bar, became angered at relator and, seizing him by the throat, began raining blows upon his face and head, and, forcing him back from the barroom through the opening into the restaurant portion, continued to beat him,...