صور الصفحة
PDF

be a fact. Plaintiff, having elected to proceed against the estate of A. H. Stephens & Son, cannot now take an inconsistent course by reason of the fact that it reserved the right to proceed against the bank. Clausen V. Head, 110 Wis. 405, 85 N. W. 1028, 84 Am. St. Rep. 933.

From what we have said plaintiff is not entitled to recover, and the judgment is reVersed. All COncur.

--

FRANKLIN V. HOLLIWAY et al. (No. 12861.)

(Kansas City Court of Appeals. May 20, 1918.)

1. APPEAL AND ERROR 3:263(1)—INSTRUCTION-EXCEPTION-REVIEW. Where an instruction was objected to, but no exception to the court's action in overruling the objection and in giving the instruction Was taken, the instruction could not be reviewed on appeal. 2. PRINCIPAL AND SURETY 3:162(2)—ACTION ON BOND–EVIDENCE—DEMURRER. In an action on a bond given to assignor of mail-carrying contract by assignee, conditioned to save assignor harmless as to any liability to government, held that a demurrer to the evidence was properly refused. 3. PRINCIPAL AND SURETY 3:142—MAIL CONTRACT-ASSIGNMENT—BOND-DEFENSE. Regardless of the validity of the assignment of a mail-carrying contract, the government not objecting, assignee could be held liable on his bond to assignor to save him harmless from effect of breach. 4. BONDS Q-o146—JUDGMENT-VALIDITY. A judgment, in an action on a bond for amount of damages returned by the jury without judgment for penalty of the bond, is erroneOllS.

Appeal from Circuit Court, Osage County; A. Breuer, Judge. “Not to be officially published.” Action by Roy G. Franklin against Charles Holliway and others. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded, with directions to enter the proper judgment. Gove & Davidson, of Linn, and W. S. Pope, of Jefferson City, for appellants. WOSholl & Monroe, J. P. Peters, and E. M. Zeveley, all of Linn, for respondent.

Missouri.

ELLISON, P. J. Plaintiff's action is based on an indemnifying bond given to plaintiff by defendant Holliway as principal and the other defendants as Sureties. The judgment in the lower court was for the plaintiff.

[1] It appears that plaintiff had a government contract for carrying the mail On route No. 45217, and that one Meamber had a like contract for carrying the mail on route No. 45216, both routes being in Osage county; that plaintiff bought Meamber's route and thereby became the owner of both routes and became obligated to carry the mail as re

quired by his contract. Afterwards plaintiff Sold both routes to defendant Holliway, and took from defendant Holliway the bond in suit, obligating himself to carry out his COntract for Carrying the mail and to Save plaintiff harmless by reason of his obligation to the government and to Meamber that he (plaintiff) would carry the mail. No objection was made to the introduction of this bond. Each party asked our instruction; that for plaintiff was given. Defendant objected to its being given, but took no exception to the action of the court in overruling his Objection and giving the instruction. He therefore cannot notice points made On it On appeal. [2] The instruction offered by defendants Was a demurrer. It was refused, and they excepted. We think it was properly refused for the reaSOn that there is ample evidence tending to Support plaintiff’s case. There was evidence tending to show that Holliway refused to carry the mail from the 21st of June to the 29th of August, 1917, and that plaintiff Was compelled to carry it himself and have it carried, and that it cost $65 per month. The objection that the cost of carrying it was not properly shown is not substantial. [3] Point is made as to the nature and Sufficiency of the contracts With the government, and that the contract between plaintiff and Holliway was forbidden by law. The federal government seems not to have made any objection, and we do not see any good reason why defendant should not be held in damages for failure to carry out his agreement and obligation. [4] The entire defense is based on technicalities, even to the last point, though we find it necessary to sustain that one. There was no judgment rendered for the penalty of the bond. The only judgment found in the record is one for the amount of damages returned by the jury. For that error the judgment must be reversed, and cause remanded, With directions to enter the proper judgment, the costs of the appeal taxed against the plaintiff. All concur.

(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 @:88(2) - BONDS OF SALOON KEEPERS – RIGHT OF RECOV

ERY. 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 2. INTOxICATING LIQUORs 3:588(2) – 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.

bond.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Real Party in Interest.]

3. INTOXICATING LIQUORS (3:286(1) - 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 SerWing 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 IIlan.

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 b0nd for a Viola. tion 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 COWered 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 had 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, denies 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

6->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

“I don't like you anyway.” The party at the table sprang up and sought to interfere, and for a time there was considerable disturbance, Most of the beating took place in the barroom proper, but the last few blows given relator were delivered near the table Where the party sat. According to the evidence in plaintiff’s favor the beating Was stopped by one of the party seizing the bartender and pulling him off of relator. The Visitors and Others present described the beating as “brutal.” After the trouble arose, defendant Hailer remarked to relator, “Get On Out When he tells you to ; get on Out When he tells you to,” referring to his barkeeper. A friend took charge of relator, who was bleeding, and took him home in an automohile. Relator was not intoxicated, and had done nothing out of the way or to provoke the attack. Before leaving, this friend said to defendant Hailer that it Was the most brutal beating he had ever seen, and Hailer said, “Come around to-morrow and We Will fix it up.” Thereupon the proprietor Ordered everybody out, not only of the room where the bar was, but of all the rooms where there Were tables, and closed up the entire place. The next day relator's friend saw Hailer and told him it Was the most brutal assault he had ever seen and that he (Hailer) could not afford to keep a man like that in his employ; that he Ought not to keep a man that Would do a thing like that; it would give him trouble. Hailer refused to adopt the Suggestion, Saying that “Pete (meaning relator) had caused him trouble before.” The question to be determined is whether suit can be maintained at the relation of the One Who has been directly and Specially injured by the failure “to keep at all times an orderly house.” Section 7196, R. S. MO. 1909, requiring a bond of a dramshop keeper before he can be licensed, says such bond shall be conditioned that he (1) “shall at all times keep an orderly house”; (2) that he “Will not sell, give away, or otherWise dispose of, or Suffer the same to be done about his premises, any intoxicating liquor in any quantity to any minor”; (3) that he will not violate any of the provisions of the article on dramshops; (4) that he will pay all taxes on his stock of liquor's and all fines, penalties, and forfeitures adjudged against him under the provisions of the article relating to dramshops. The bond Was in due and proper form and conditioned as the law directS. No point is made that the fighting and assault, together with the accompanying disturbance, done and created by the dramshop Reeper's bartender and permitted by the proprietor in his presence and place of business and while the same was being carried on, did not constitute a failure to keep an orderly house, and for this reason was not a breach of Said bond. Defendants’ Conbe had nor Suit maintained at relator's inStance Or for his benefit because he is not the proper party under the statute to maintain the Suit. Another Statute (Section 7198) provides for a civil action by two or more reputable taxpaying citizens, as relators, for the forfeiture Of Said bond and for the taxing of a penalty of not less than $100 to go to the school fund, together with a reasonable attorney’s fee. Another Statute (Section 7213) provides for the recovery of a penalty of $50 for selling liquor to any minor, said penalty to go to the parent, master, or guardian Of Said minor; While Still another statute (section 7223) provides for the recovery of a penalty of not less than $50 nor more than $500 for selling (after notice) to an habitual drunkard, such penalty to go to the wife, father, mother, brother, Sister, child, Or, guardian of such drunkard, and involving the forfeiture of the dramshop license. Each Of Said last-named Sections makes the act therein Specified a misdemeanor punishable by fine. The statute nowhere expressly says that damages may be recovered by any one specially injured by the failure to keep at all times an orderly house, and for this reason defendants say this Suit for damages cannot be maintained. [1] There is no question but that where a statute creates a new right and prescribes a remedy the statutory remedy is exclusive; but in this instance the statute provides for the giving of a bond conditioned, first, that the dramshop keeper “shall keep at all times an orderly house,” and then that he shall not Sell to minors nor to drunkards, and Shall pay all fines and forfeitures imposed for a violation of the dramshop law. The remedies provided by sections 7198, 7213, and 7223 do not relate to the recovery of damages by one suffering a direct and special injury from an active breach Of the bond in relation to keeping an orderly house at all times. In fact, the statutory remedies do not relate to damages at all, nor to a CauSe Of action On the bond to compensate a person for injuries received through a breach thereof; they relate solely to the recovery of penalties wherein no pecuniary damageS need be shown. No cause of action for these could exist aside from the statute; and the fact that remedies for them are provided doeS not exclude a cause of action for damages personally accruing from the positive intentional act Of the dramShop keeper, through his agent and bartender, constituting a violation of his bounden duty to keep at all times an Orderly house. The Statute requires of the dramshop keeper a bond for the faithful performance of his duty in this regard; and While it is Silent as to the right to Sue thereon for damages directly and specially arising therefrom and as to who can exerCise that right, yet there is nothing therein tending to exclude the exercise of such right. As to it, the statute merely Says nothing,

and the remedies expressly provided for are rights which could by no possibility come into existence unless affirmatively created by statute. But at common law the dramShop keeper is responsible for the assaults Of his agent under the circumstances of this CaSe, and the Only effect Of the bond aS to Such matters is to guarantee that the Same will not occur. [2] In other words, the statute having required a bond for the faithful performance of duty, and relator, as a peaceable, unoffending patron, legally in the dramshop keeper's place of business, is entitled to an obServance of that duty, and, being personally and specially injured by the failure to perform that duty, has a cause of action on the bond. Being the party injured by the breach of the bond, he is the real party in interest, and, as relator, is entitled to have the Suit maintained. Section 1729, R. S. Mo. 1909. Frequently statutes provide for the giving of bonds, made payable to the state, for the performance of Some duty or obligation concerning which it is not provided who may sue thereon, but “where there's a right there's a remedy,” and it has been held that One suffering a special injury from a breach of the bond and to whom the obligation is owed Inay Sue thereon. For instance, a recorder of deeds is required to give bond for the faithful performance of his duties, and no proVision is made as to who may sue thereon or under what circumstances suit may be brought. And yet a recorder was held liable On his bond for a breach thereof toward one to Whom he owed that duty and who was Specially injured by the breach thereof. State ex rel. v. Green, 124 Mo. App. 80, 100 S. W. 1115. See, also, Scott V. Missouri Pacific R. Co., 38 Mo. App. 523. That a bond inures to the benefit of One entitled to the performance of the duty for which the bond is given, and can be sued on by such an one injured by the breach thereof, is held in Young V. Young, 21 Ind. App. 509, 52 N. E. 776; American Surety Co. v. Thorn-Halliwell Cement Co., 9 Kan. App. 8, 57 Pac. 237; People v. Cotteral, 115 Mich. 43, 73 N. W. 19, 74 N. W. 183; School District v. Livers, 147 Mo. 580, 49 S. W. 507; City of St. Louis v. Von Phul, 133 Mo. 561, 34 S. W. 843, 54 Am. St. Rep. 695; Devers V. Howard, 144 Mo. 671, 46 S. W. 625. In Squires v. Michigan Bonding Co., 173 Mich. 304, 138 N. W. 1062, 43 L. R. A. (N. S.) 76, it is held that a saloon keeper's bond, being for the benefit of the public and not Strictly contractual in nature, is to be conStrued according to the purpose, intent, and meaning of the statute pursuant to which it is given, and not according to the strict rules applicable to private contracts of suretyship. Certain it is that if the action in the Case at bar Cannot be maintained, then individual citizens or members of the body politic have no protection by reason of said bond. If a person is beaten up and abused by the

saloon keeper or his agents while in the Saloon, then the only redress afforded by the bond is to have two reputable taxpaying citizens to bring suit for the forfeiture thereof, provided they will volunteer to run the risk. We do not think this is the intent and meaning of the statute nor the limit of its purpose in requiring the saloon keeper to give security against the happening of such occurrences. The busineSS engaged in is Of a character likely to result in such things, and the Saloon keeper gives a bond that he will not permit or Suffer them to be done, and his Sureties are well aware of the nature of the busineSS they agree to guarantee shall be conducted in an Orderly manner, and for a Saloon keeper, through his agent and bartender, to beat up an unoffending patron of his place of business and then go free of all liability on the bond because it does not cover Such matters is to restrict within too narrow limits the

language of the bond and the object and in

tention of the statute requiring one to be given. The remedies expressly provided by the aforesaid other statutes relate to police powers for the protection of the public and the public morals where no pecuniary rights of an individual are specially affected. Hence such remedies do not exclude by implication an individual remedy to redress an individual wrong. The two classes of remedies are wholly separate and distinct. [3] It is next contended that the obligation of the bond did not cover the rooms used in connection with the barroom denominated restaurant and kitchen. The conceded facts show that the restaurant room, the kitchen, and the barroom were all used in connection with each other wherein to sell drinks and carry on the business of retailing intoxicating liquors. ducted as one business, So that the restaurant room, the kitchen, and barroom, in reality, constituted the premises and a part of the saloon; each being a mere department of the other. And the fact that there Was a front door to each of said rooms numbered respectively 526, 528, and 530, and the license called for the location of the saloon at 530, did not make them separate. The busineSS, as operated, was that of a saloon and restaurant combined, intermingled and mutually interchangeable, and the sureties knew this when they signed the bond. There is no doubt but that the bond and the obligation thereof Should not be Stretched to COVer a “place” or “location” different from that for which it was given and the license was granted. But by the very terms of Section 7196 the bond covers the dramShop keeper's “house” and “premises.” So that where the entire premises are used as a saloon and for the sale of intoxicating liquor under the license granted the bond should and does cover the premises so used, and not merely the compartment where the liquors are stored or where the sale thereof is made to Stand

The whole formed and was con

ing customers at a counter called a bar, When other sales are made, in an adjoining and openly connected compartment, to other CustomerS Seated at tables. The saloon keeper in this case had but one license, and if the open and adjacent rooms were not a part of his saloon then he was violating the law in Selling liquors therein. He himself recognized it as all one place, for when he realized the possible consequences arising from What his agent had done, he ordered everybody out of all rooms and closed them up. In Horan V. Travis Co., 27 Tex. 226, a bond Was held to cover premises much more separated than the rooms here involved. See, also, Adams v. State (Tex. Civ. App.) 146 S. W. 1086, Where it is held that a disturbance occurring in a small inclosure behind the Saloon keeper's place of business, but under his charge and control, was covered by the bond. In Whitcomb v. State, 2 Tex. Civ. App. 301, 21 S. W. 976, it was held that the bond covered an arbor located back of the Saloon and separated from it by an alley; the arbor containing tables at which patrons Were Served With drinks from the Saloon. We are of the opinion that relator, having suffered a direct and personal injury from the positive and intentional act on the part Of the dramShop keeper's agent and bartender, in direct violation of the duty imposed by statute and guaranteed by the bond, namely, “to keep at all times an orderly house,” is entitled to recover on the dramshop keeper's bond for such direct and positive violation thereof, and hence affirm the judgment. All concur.

(199 Mo. App. 418) LANCASEIIRE v. GARFORD MFG. CO. (No. 12728.) (Kansas City Court of Appeals. April 29, 1918.) 1. LANDLORD AND TENANT ©:190(1)–CONSTRUCTIVE EVICTION. Where a landlord leases premises for a lawful purpose, not knowing the character of the tenant, and afterwards a nuisance, such as a house of prostitution, is maintained by the tenant by the landlord’s sufferance, connivance, or consent, another tenant, forced to move because of the nuisance, is constructively evicted, and the landlord cannot recover the rent thereafter accruing. 2. LANDLORD AND TENANT ©:190(1)—CONSTRUCTIVE EVICTION. A tenant who had suffered a constructive eviction by the landlord’s permitting another tenant to use her portion of the premises as a house of prostitution, was not obliged, before vacating, to await a belated effort of the landlord to put the disreputable tenant out, where the landlord was offering a lame excuse why he might be frustrated in such effort.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by Sarah H. Lancashire against the Garford Manufacturing Company. From judgment for defendant, plaintiff appeals. Affirmed.

Missouri.

« السابقةمتابعة »