White v. State ex rel. Huff

• Decision Date: 29 October 1915
• Docket Number: No. 22835.,22835.
• Citation: 109 N.E. 905,183 Ind. 649
• Parties: WHITE et al. v. STATE ex rel. HUFF et al.
• Court: Indiana Supreme Court

183 Ind. 649

109 N.E. 905

WHITE et al.

v.STATE ex rel. HUFF et al.

No. 22835.

Supreme Court of Indiana.

Oct. 29, 1915.

Appeal from Circuit Court, Posey County; Herdis Clements, Judge.

Action by the State, on the relation of Ida Huff and others, against James White and another. Judgment for plaintiffs, and defendants appeal. Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1914 (Acts 1901, c. 259). Judgment affirmed.

William Espenschied and George Wm. Curtis, both of Mt. Vernon, and George C. Taylor, of New Harmony, for appellants. G. V. Menzies, of Mr. Vernon, for appellees.

COX, J.

This appeal is from a judgment recovered by appellees, the widow and children of Lewis E. Huff, deceased, in an action on a retail liquor dealer's bond to recover statutory damages for loss of support through his death. Section 8355, Burns 1908; section 8323g, Burns 1914.

The first error assigned by appellants is that the trial court erred in overruling their demurrers to the complaint. The complaint was in one paragraph, and alleged:

“That relators are the widow and only surviving children of one Lewis E. Huff, deceased. That said relators were entirely dependent for their support and maintenance upon said Lewis E. Huff, who died on March 13, 1912, as a result of the grievance hereinafter alleged. That on April 3, 1911, one Alfred Spillman made application for, and was granted, a license by the board of commissioners of Posey county, Ind., to sell intoxicating liquors at the town of New Harmony, Ind., and executed his bond in the penal sum of $3,500 with the defendant the Bankers' Surety Company of Cuyahoga county, Ohio, as surety thereon, conditioned that said Spillman, among other things, would pay all civil damages growing out of unlawful sales of intoxicating liquors, or other unlawful conduct on the part of said Spillman, which bond was filed with the auditor of Posey county, Ind., and a copy thereof is attached to the complaint and marked ‘Exhibit A.’ That on October 2, 1911, Spillman made application and request to the board of county commissioners of Posey county, Ind., and was granted the right by said board to transfer said license to the defendant James White, and that White accepted said sale and transfer and entered into business as a saloon keeper upon the same terms and conditions mentioned in said license to Spillman, in the same premises in New Harmony, Ind. That on the sale and transfer of said license the defendant the Bankers' Surety Company of Cuyahoga county, Ohio, filed its written consent with said board of commissioners to said sale and transfer and its covenants with said board to be bound thereon, as obligor to said White, in all things the same as it had theretofore been bound for said Spillman, and that said covenant is filed with said complaint and marked ‘Exhibit B.’ That this covenant was approved by the auditor of Posey county, which approval is filed with the complaint and marked ‘Exhibit C.’ And that thereupon White commenced to sell intoxicating liquors and keep a saloon under and by virtue of said license.

That Huff, on March 13, 1912, was a farmer about 42 years old living on a public highway four miles south of New Harmony and was a strong, healthy, and industrious man who earned a good support and maintenance for the relators, who were at that time entirely dependent upon the decedent for their support and maintenance. That Huff, on the afternoon of March 13, 1912, while sober drove a road wagon, with a gentle team of horses attached thereto, from his home over the highway at New Harmony. That he arrived at New Harmony and visited the saloon of defendant White. That on the said 13th day of March, 1912, the defendant White or his barkeeper and agent unlawfully sold or gave decedent intoxicating liquor when decedent was in a state of intoxication, which was known to White, his barkeeper or agent. That by reason of and as a result of the intoxication of decedent, caused as aforesaid by the unlawful selling or giving to decedent intoxicating liquors by White or his agent, the decedent became incapacitated for managing and driving his team of horses, and, as a result of said intoxication, when driving his team of horses decedent was liable to receive fatal injuries. That the decedent when intoxicated started, after dark, on March 13, 1912, to drive said team of horses, attached to said wagon, from New Harmony over said public highway to his home. That as a result of and caused by said intoxication, the decedent was incapacitated from properly managing, controlling, or driving said team of horses. That said team of horses, on account of and caused by decedent's incapacity to properly drive and control them, became irritable, fractious, and unmanageable by decedent. That the decedent when intoxicated leaned over the dashboard of said wagon, and as he leaned over said dashboard said team, or one horse thereof, was irritated and made fractious and unmanageable by the acts of decedent, when so intoxicated, to such an extent that the horse kicked decedent on the head and face, causing him fatal injuries, and as a result of his injuries decedent died and was found dead the next morning in said wagon near his home. That the death of decedent was caused by the unlawful selling or giving to him by defendant White, or his agent, of intoxicating liquors as aforesaid. That by reason of the premises relators have been injured in their means of support in the sum of $3,500, for which sum they demand judgment.”

Exhibit A was the usual form of bond provided by law for liquor dealers and originally executed by Alfred Spillman and the Bankers' Surety Company as surety. Exhibit B shows by indorsement on the original Spillman bond that on October 2, 1911, the interest of Spillman was assigned to appellant White, subject to the consent of the Bankers' Surety Company, and this was signed by Alfred Spillman and thereafter there appears indorsed on said bond the consent of the Bankers' Surety Company that the bond be assigned to White, subject to all its terms and conditions. This was signed by the Bankers' Surety Company by Edwin Wade, its attorney in fact. Exhibit C was the approval of the auditor of Posey county to such assignment and consent and the order of the board of commissioners thereon.

[1] In behalf of appellant surety company, it is claimed that the complaint fails to state a cause of action against it for the reason that the law which permits the transfer of a retail liquor dealer's license, by its terms, requires that the transferee, before he can secure approval of the transfer and rights thereunder, shall give a new bond. Section 8323 o, Burns 1914; Acts 1911, p. 254, § 12. And it is contended that the bond counted upon by the complaint is not such a bond, and hence does not impose any liability upon appellant...