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be a fact. Plaintiff, having elected to pro- | quired by his contract. Afterwards plainceed against the estate of A. H. Stephens & tiff sold both routes to defendant Holliway, Son, cannot now take an inconsistent course and took from defendant Holliway the bond by reason of the fact that it reserved the in suit, obligating himself to carry out his right to proceed against the bank. Clausen contract for carrying the mail and to save v. Head, 110 Wis. 405, 85 N. W. 1028, 84 Am. plaintiff harmless by reason of his obligation St. Rep. 933.

to the government and to Meamber that he From what we have said plaintiff is not (plaintiff) would carry the mail. No objecentitled to recover, and the judgment is re- tion was made to the introduction of this versed. All concur.

bond. Each party asked our instruction; that for plaintiff was given. Defendant objected to its being given, but took no excep

tion to the action of the court in overruling FRANKLIN V. HOLLIWAY et al.

his objection and giving the instruction. (No. 12861.)

He therefore cannot notice points made on it (Kansas City Court of Appeals. Missouri. on appeal. May 20, 1918.)

[2] The instruction offered by defendants 1. APPEAL AND ERROR Omw263 (1)-INSTRUC- was a demurrer. It was refused, and they exTION-EXCEPTION-REVIEW.

cepted. We think it was properly refused for Where an instruction was objected to, but the reason that there is ample evidence tendthe objection and in giving the instruction was ing to support plaintiff's case. There was evitaken, the instruction could not be reviewed on dence tending to show that Holliway refusappeal.

ed to carry the mail from the 21st of June to 2. PRINCIPAL AND SURETY O 162(2)-ACTION the 29th of August, 1917, and that plaintiff ON BOND-EVIDENCE-DEMURRER.

In an action on a bond given to assignor of was compelled to carry it himself and have mail-carrying contract by assignee, conditioned it carried, and that it cost $65 per month. to save assignor harmless as to any liability The objection that the cost of carrying it to government, held that a demurrer to the ev- was not properly shown is not substantial. idence was properly refused.

[3] Point is made as to the nature and 3. PRINCIPAL AND SURETY Ow142–MAIL CONTRACT-ASSIGNMENT-BOND-DEFENSE. sufficiency of the contracts with the govern

Regardless of the validity of the assignment ment, and that the contract between plaintiff of a mail-carrying contract, the government not and Holliway was forbidden by law. The objecting, assignee could be held liable on his bond to assignor to save him harmless from ef. federal government seems not to have made fect of breach.

any objection, and we do not see any good 4. BONDS 146-JUDGMENT-VALIDITY. reason why defendant should not be held

A judgment, in an action on a bond for in damages for failure to carry out his agreeamount of damages returned by the jury without judgment for penalty of the bond, is errone- ment and obligation. ous.

[4] The entire defense is based on techni. Appeal from Circuit Court, Osage Coun- calities, even to the last point, though we ty; A. Breuer, Judge.

find it necessary to sustain that one. There "Not to be officially published.”

was no judgment rendered for the penalty Action by Roy G. Franklin against Charles of the bond. The only judgment found in Holliway and others. Judgment for plain the record is one for the amount of damages

For that error the tiff, and defendants appeal. Reversed, and returned by the jury. cause remanded, with directions to enter judgment must be reversed, and cause rethe proper judgment.

manded, with directions to enter the proper Gove & Davidson, of Linn, and W. S. Pope, against the plaintiff. All concur.

judgment, the costs of the appeal taxed

. of Jefferson City, for appellants. Vosholl & Monroe, J. P. Peters, and E. M. Zeveley, all of Linn, for respondent.

(199 Mo. App. 470)

STATE ex rel. and to Use of HAYES v. ELLISON, P. J. Plaintiff's action is

HAILER et al. (No. 12857.) based on an indemnifying bond given to

(Kansas City Court of Appeals. Missouri. plaintiff by defendant Holliway as principal

May 20, 1918.) and the other defendants as sureties. The

BONDS judgment in the lower court was for the 1. INTOXICATING LIQUORS C 88(2)

OF SALOON KEEPERS RIGHT OF RECOV. plaintiff.

ERY. [1] It appears that plaintiff had a govern- Rev. St. 1909, $ 7198, providing for forfeiment contract for carrying the mail on route ture of saloon keeper's bond, section 7213, proNo. 45217, and that one Meamber had a like viding penalty for sale of liquor to minors, and

section 7223, providing penalty for sale of liqcontract for carrying the mail on route uor to habitual drunkards, do not attempt to No. 45216, both routes being in Osage county; cover recovery on bond of saloon keeper by one that plaintiff bought Meamber's route and damaged by his failure, as required in the bond

under section 7196, to keep an orderly house, thereby became the owner of both routes and such person may therefore recover on the and became obligated to carry the mail as re- bond.

2. INTOXICATING LIQUORS O 88(2) RIGHT, assault was committed. Liability is denied

TO SUE-SALOON KEEPER'S BOND “REAL on the ground that relator cannot sue the PARTY IN INTEREST."

One injured by saloon keeper's failure to sureties on the dramshop bond for a viola keep an orderly house, as required by bond giv- tion thereof, even though the relator be the en under Rev. St. 1909, § 7196, was the real party receiving direct, special, and personal party in interest and could sue, as relator, on injury thereby. the bond in view of section 1729, requiring claim that the assault and general disturb

The defendants further • suits to be by the real parties in interest.

[Ed. Note.-For other definitions, see Words ance arising therefrom took place either in and Phrases, First and Second Series, Real the restaurant or kitchen attached to the Party in Interest.]

saloon and not in the barroom proper, and 3. INTOXICATING LIQUORS Om 86(1)

Bonds that the bondsmen are not liable for disorOF SALOON KEEPERS-LIABILITY.

der therein. The evidence in relator's beWhere saloon keeper had saloon, restaurant, balf amply tends to support his claim that and kitchen in one building, but in connecting rooms, which he ran as one business, serving the assault was begun in the barroom propliquors in all three rooms, to the knowledge ofer; the barkeeper commencing to beat rehis bondsmen, the bond '"to keep an orderly lator in there and continuing to beat him house” covered the entire business and all the after forcing him through the opening into rooms it occupied.

the adjacent room. But as this was disputAppeal from Circuit Court, Pettis County; ed, and as the trial court instructed the jury Hopkins B. Shain, Judge.

that under the conceded facts the adjacent Action by the State, at the relation and to rooms called the restaurant and kitchen the use of Peter H. Hayes, against W. J. were all a part of the dramshop and covered Hailer and others. Judgment on verdict for by the bond, it will be necessary to pass upplaintiff, and defendants appeal. Affirmed. on the propriety of this instruction if the

C. C. Kelly, of Sedalia, for appellants. other contention of defendants is found to be Holmes Hall and G. W. Barnett, both of Seunavailing.

The conceded facts with reference to the dalia, for respondent.

saloon and restaurant, the conduct and manTRIMBLE, J. This is an action in the agement of the business, and the arrangename of the state by relator on defendant ment of the building in which it is housed, Hailer's bond as a dramshop keeper; the

are as follows:

The saloon and restaurant had been run defendants Moerschel and Urban being sureties thereon. There was a verdict and judg- in connection and as one business enterprise ment for $150, and defendants have ap- for a great many years, having been handed pealed.

down to the present proprietor from his faThe petition charges a breach of the bond ther. It was housed in a building which on the part of said Hailer, and seeks to re- was separate and apart from other buildings, cover damages accruing to relator by reason and fronted north on East Third street. of being injured on account of the failure to Across the entire front of the building was keep an orderly house, in that said dramshop a large sign: "Hailer's Saloon and Reskeeper's bartender Lopp, while engaged in taurant." Partitions divided the ground his duties as bartender and in serving drinks floor into three rooms running north and in the barroom proper and in the adjacent south; the barroom proper being on the east rooms, alleged to be a part of the saloon, vio- side; the two others having tables therein lently and without provocation assaulted re- at which lunches were eaten and drinks from lator, Hayes, by seizing him by the throat the barroom were sold. Toward the rear or and beating him in the face, cutting a gash south end of the rooms were doorways in over his eye and otherwise injuring him, and the partitions which were kept constantly at the same time cursing and abusing him open so as to afford free and open communiand applying to him vile and profane epi- cation at all times between the barroom thets; all being done while said Hayes was proper and the parts called restaurant and behaving himself in a peaceable and orderly kitchen. At the rear or south end of the manner and without having been requested to barroom was a toilet and at the south end leave the saloon. The petition further al- of the restaurant portion a part was partileged that said assault was committed in the tioned off into what is called the kitchen, presence of said Hailer, but that he did not but it also had tables therein the same as undertake to interfere with his said barkeep the part called restaurant. There was also er in the latter's disorderly and inhuman an opening into it affording easy access conduct, and tacitly approved thereof and thereto from the barroom and restaurant. continued the said barkeeper in his employ, Parties seated at tables were served with although requested to disavow said disorder- lunches, and also with drinks brought from ly acts and to discharge said barkeeper from the barroom. Said drinks were served by his employ on account of said disorderly con- the barkeeper, and he collected the money duct and brutal outrage upon an inoffensive therefor at the tables where they were servman.

ed and drunk. In the restaurant room at There is no dispute over the fact that the the south end next to the kitchen was a

Om For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

lunch counter at which sandwiches could be, "I don't like you anyway." The party at obtained, and in the barroom proper was a the table sprang up and sought to interfere, smaller counter where they could also be had, and for a time there was considerable disthough defendants' testimony conflicts with turbance. Most of the beating took place in plaintiff's on this last point, namely, as to the barroom proper, but the last few blows whether there was a lunch counter in the bar- given relator were delivered near the table room proper. There is, however, no controver- where the party sat. According to the evisy over the fact that the barkeepers prepared dence in plaintiff's favor the beating was drinks at the bar, took them into the res- stopped by one of the party seizing the bartaurant room and kitchen, served them to tender and pulling him off of relator. The the patrons seated at the tables, and col- visitors and others present described the lected the money for such drinks at the ta- beating as "brutal.” After the trouble arose, bles. Patrons testified to this, and defend- defendant Hailer remarked to relator, "Get ant Hailer's barkeeper testified that he was on out when he tells you to; get on out when barkeeper for Mr. Hailer; that he consider. he tells you to," referring to his barkeeper. ed it a part of his business to go into the A friend took charge of relator, who was restaurant or kitchen. “I was in there to bleeding, and took him home in an automohelp take care of the place. I was interest- bile. Relator was not intoxicated, and had ed in there because I was in Mr. Hailer's done nothing out of the way or to provoke the employment.” One of the defendant sureties attack. Before leaving, this friend said to on the bond testified, “I have drank lots of defendant Hailer that it was the most brutal times in the restaurant room;" and it was beating he had ever seen, and Hailer said, conceded that the other surety would testify "Come around to-morrow and we will fix the same way. The first-mentioned surety it up." Thereupon the proprietor ordered also testified that he had “not drank in the everybody out, not only of the room where back room called the kitchen on many days.” the bar was, but of all the rooms where there He further said he might have, but he did were tables, and closed up the entire place. not think he ever sat at the table and drank; The next day relator's friend saw Hailer he was not in the habit of going in the kitch- and told him it was the most brutal as

He did not think he had ever had liquor sault he had ever seen and that he (Hailer) served to him at the tables in the kitchen.

could not afford to keep a man like that in Relator was, at the time in question, a re- his employ; that he ought not to keep a porter for a paper in Sedalia, and was accom- man that would do a thing like that; it panying a number of government officials vis- would give him trouble. Hailer refused to iting the city that day. The party entered adopt the suggestion, saying that "Pete (meanthe barroom proper and relator asked de- ing relator) had caused him trouble before." fendant Hailer if they could have a table. The question to be determined is whether The proprietor assented and led them through suit can be maintained at the relation of the the opening into the part called kitchen and one who has been directly and specially inseated them at a table. They sat here for a jured by the failure "to keep at all times few minutes during which time drinks were an orderly house." Section 7196, R. S. ordered and, according to the evidence in Mo. 1909, requiring a bond of a dramshop plaintiff's behalf, were brought from the bar keeper before he can be licensed, says such to the table where the party sat, and they bond shall be conditioned that he (1) "shall were paid for at the table. The barkeeper at all times keep an orderly house”; (2) that Lopp, who committed the assault, denies that he “will not sell, give away, or otherwise he served the drinks to this particular party, dispose of, or suffer the same to be done but says another of defendant Hailer's bar- about his premises, any intoxicating liquor keepers did. After a round or so of drinks in any quantity to any minor”; (3) that he were thus served, some one suggested sand will not violate any of the provisions of the wiches, and relator, acting somewhat as article on dramshops; (4) that he will pay entertainer for the visitors, went into the all taxes on his stock of liquors and all fines, room where the bar was to order them. After penalties, and forfeitures adjudged against they were served, it was found that there him under the provisions of the article rewas one sandwich lacking, in order to pro- lating to dramshops. The bond was in due vide one for each member of the party. Re- and proper form and conditioned as the law lator again went back into the barroom prop- directs. er to get the additional sandwich. The bar- No point is made that the fighting and askeeper Lopp, because of his dislike for re- sault, together with the accompanying dislator and because the latter was in his way turbance, done and created by the dramshop in carrying drinks into the rooms from the keeper's bartender and permitted by the bar, became angered at relator and, seizing proprietor in his presence and place of busihim by the throat, began raining blows upon ness and while the same was being carried his face and head, and, forcing him back on, did not constitute a failure to keep an from the barroom through the opening into orderly house, and for this reason was not the restaurant portion, continued to beat a breach of said bond. Defendants' conbe had nor suit maintained at relator's in-J and the remedies expressly provided for are stance or for his benefit because he is not rights which could by no possibility come the proper party under the statute to main- into existence unless affirmatively created tain the suit. Another statute (section 7198) by statute. But at common law the dramprovides for a civil action by two or more shop keeper is responsible for the assaults reputable taxpaying citizens, as relators, for of his agent under the circumstances of this the forfeiture of said bond and for the tax- case, and the only effect of the bond as to ing of a penalty of not less than $100 to go such matters is to guarantee that the same to the school fund, together with a reason will not occur. able attorney's fee. Another statute (section [2] In other words, the statute having re7213) provides for the recovery of a penalty quired a bond for the faithful performance of $50 for selling liquor to any minor, said of duty, and relator, as a peaceable, unofpenalty to go to the parent, master, or guard- fending patron, legally in the dramshop keepian of said minor; while still another statute er's place of business, is entitled to an ob(section 7223) provides for the recovery of a servance of that duty, and, being personally penalty of not less than $50 nor more than and specially injured by the failure to per$500 for selling (after notice) to an habitual form that duty, has a cause of action on the drunkard, such penalty to go to the wife, bond. Being the party injured by the breach father, mother, brother, sister, child, or of the bond, he is the real party in interest, guardian of such drunkard, and involving and, as relator, is entitled to have the suit

maintained. the forfeiture of the dramshop license. Each

Section 1729, R. S. Mo. 1909. of said last-named sections makes the act Frequently statutes provide for the giving therein specified a misdemeanor punishable by oi bonds, made payable to the state, for the

of fine. The statute nowhere expressly says that performance of some duty or obligation condamages may be recovered by any one spe- cerning which it is not provided who may cially injured by the failure to keep at all sue thereon, but “where there's a right there's times an orderly house, and for this reason a remedy,” and it has been held that one times an orderly house, and for this reason suffering a special injury from a breach of defendants say this suit for damages cannot the bond and to whom the obligation is owed be maintained. [1] There is no question but that where a of deeds is required to give bond for the

may sue thereon. For instance, a recorder statute creates a new right and prescribes a faithful performance of his duties, and no remedy the statutory remedy is exclusive; but in this instance the statute provides for provision is made as to who may sue thereon

or under what circumstances suit may be the giving of a bond conditioned, first, that brought. And yet a recorder was held liable the dramshop keeper “shall keep at all times on his bond for a breach thereof toward one an orderly house,” and then that he shall to whom he owed that duty and who was not sell to minors nor to drunkards, and shall specially injured by the breach thereof. pay all fines and forfeitures imposed for a state ex rel. v. Green, 124 Mo. App. 80, 100 violation of the dramshop law. The reme- S. W. 1115. See, also, Scott v. Missouri Padies provided by sections 7198, 7213, and 7223 cific R. Co., 38 Mo. App. 523. That a bond do not relate to the recovery of damages by inures to the benefit of one entitled to the one suffering a direct and special injury from performance of the duty for which the bond an active breach of the bond in relation to is given, and can be sued on by such an one keeping an orderly house at all times. In injured by the breach thereof, is held in fact, the statutory remedies do not relate Young y. Young, 21 Ind. App. 509, 52 N. E. tc damages at all, nor to a cause of action 776; American Surety Co. v. Thorn-Halliwell on the bond to compensate a person for in- Cement Co., 9 Kan. App. 8, 57 Pac. 237; juries received through a breach thereof; People v. Cotteral, 115 Mich. 43, 73 N. W. they relate solely to the recovery of penal. 19, 74 N. W. 183; School District v. Livers, ties wherein no pecuniary damages need be 147 Mo. 580, 49 S. W. 507; City of St. Louis shown. No cause of action for these could v. Von Phul, 133 Mo. 561, 34 S. W. 843, 54 exist aside from the statute; and the fact Am. St. Rep. 695; Devers v. Howard, 144 that remedies for them' are provided does Mo. 671, 46 S. W. 625. not exclude a cause of action for damages In Squires v. Michigan Bonding Co., 173 personally accruing from the positive inten- Mich. 304, 138 N. W. 1062, 43 L. R. A. (N. tional act of the dramshop keeper, through s.) 76, it is held that a saloon keeper's bond, his agent and bartender, constituting a vio- being for the benefit of the public and not lation of his bounden duty to keep at all strictly contractual in nature, is to be contimes an orderly house. The statute requires strued according to the purpose, intent, and of the dramshop keeper a bond for the faith- meaning of the statute pursuant to which ful performance of his duty in this regard; it is given, and not according to the strict and while it is silent as to the right to sue rules applicable to private contracts of surethereon for damages directly and specially tyship. Certain it is that if the action in the arising therefrom and as to who can exer- case at bar cannot be maintained, then indicise that right, yet there is nothing therein vidual citizens or members of the body politic tending to exclude the exercise of such right. have no protection by reason of said bond. As to it, the statute merely says nothing, if a person is beaten up and abused by the

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saloon keeper or his agents while in the sa-ing customers at a counter called a bar, loon, then the only redress afforded by the when other sales are made, in an adjoining bond is to have two reputable taxpaying citi- and openly connected compartment, to other zens to bring suit for the forfeiture thereof, customers seated at tables. The saloon keepprovided they will volunteer to run the risk. er in this case had but one license, and if the We do not think this is the intent and mean- open and adjacent rooms were not a part of ing of the statute nor the limit of its purpose his saloon then he was violating the law in in requiring the saloon keeper to give secur- selling liquors therein. He himself recogity against the happening of such occurrenc- nized it as all one place, for when he reales. The business engaged in is of a character ized the possible consequences arising from likely to result in such things, and the saloon what his agent had done, he ordered everykeeper gives a bond that he will not permit body out of all rooms and closed them up. or suffer them to be done, and his sureties In Horan v. Travis Co., 27 Tex. 226, a bond are well aware of the nature of the business was held to cover premises much more sepathey agree to guarantee shall be conducted rated than the rooms here involved. See, in an orderly manner, and for a saloon keep- also, Adams v. State (Tex. Civ. App.) 146 er, through his agent and bartender, to beat S. W. 1086, where it is held that a disturbup an unoffending patron of his place of busi- ance occurring in a small inclosure behind ness and then go free of all liability on the the saloon keeper's place of business, but unbond because it does not cover such matters der his charge and control, was covered by is to restrict within too narrow limits the the bond. In Whitcomb v. State, 2 Tex. Civ. language of the bond and the object and in- . App. 301, 21 S. W. 976, it was held that the tention of the statute requiring one to be bond covered an arbor located back of the given. The remedies expressly provided by the saloon and separated from it by an alley; the aforesaid other statutes relate to police pow- arbor containing tables at which patrons ers for the protection of the public and the were served with drinks from the saloon. public morals where no pecuniary rights of We are of the opinion that relator, having an individual are specially affected. Hence suffered a direct and personal injury from such remedies do not exclude by implication the positive and intentional act on the part an individual remedy to redress an individ- of the dramshop keeper's agent and barual wrong. The two classes of remedies are tender, in direct violation of the duty imposwholly separate and distinct.

ed by statute and guaranteed by the bond, [3] It is next contended that the obliga- namely, “to keep at all times an orderly tion of the bond did not cover the rooms used house,” is entitled to recover on the dramin connection with the barroom denominated shop keeper's bond for such direct and posirestaurant and kitchen. The conceded facts tive violation thereof, and hence affirm the show that the restaurant room, the kitchen, judgment. All concur. and the barroom were all used in connection with each other wherein to sell drinks and

(199 Mo. App. 418) carry on the business of retailing intoxicat

LANCASHIRE v. GARFORD MFG. CO. ing liquors. The whole formed and was con

(No. 12728.) ducted as one business, so that the restaurant room, the kitchen, and barroom, in real

(Kansas City Court of Appeals. Missouri. ity, constituted the premises and a part of

April 29, 1918.) the saloon; each being a mere department 1. LANDLORD AND TENANT Cw190(1)-Con

STRUCTIVE EVICTION. of the other. And the fact that there was a

Where a landlord leases premises for a front door to each of said rooms numbered lawful purpose, not knowing the character of respectively 526, 528, and 530, and the license the tenant, and afterwards a nuisance, such as called for the location of the saloon at 530, a house of prostitution, is maintained by the

tenant by the landlord's sufferance, connivance, did not make them separate. The business, or consent, another tenant, forced to move beas operated, was that of a saloon and res- cause of the nuisance, is constructively evicttaurant combined, intermingled and mutu- ed, and the landlord cannot recover the rent

thereafter accruing. ally interchangeable, and the sureties knew

2. LANDLORD_AND TENANT Omw 190(1)-CONthis when they signed the bond. There is no

STRUCTIVE EVICTION. doubt but that the bond and the obligation A tenant who had suffered a constructive thereof should not be stretched to cover a eviction by the landlord's permitting another "place" or "location" different from that tenant to use her portion of the premises as a for which it was given and the license was vacating, to await a belated effort of the land

house of prostitution, was not obliged, before granted. But by the very terms of section ford to put the disreputable tenant out, where 7196 the bond covers the dramshop keeper's the landlord was offering a lame excuse why he "house" and "premises.” So that where the might be frustrated in such effort. entire premises are used as a saloon and for Appeal from Circuit Court, Jackson Counthe sale of intoxicating liquor under the li- ty; Thomas B. Buckner, Judge. cense granted the bond should and does cover Action by Sarah H. Lancashire against the the premises so used, and not merely the Garford Manufacturing Company. From compartment where the liquors are stored judgment for defendant, plaintiff appeals. or where the sale thereof is made to stand-J Affirmed.

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