Terre Haute Brewing Co. v. Newland

Roby, J. Action by appellee based upon §7288 Bums 1901, for damages on account of death of her son, twenty-two years of age, upon whom she avers that she was dependent. Verdict against Jacob Van Blaricum and the Terre Haute Brewing Company for $500. Motion for a new trial overruled, and judgment on the verdict. The sole question presented on this appeal is the sufficiency of the evidence to sustain the verdict as against the brewing company, the alleged deficiency being lack of connection with the occurrence on its part. The complaint contains an averment as follows: “The defendant, the Terre Haute Brewing Company, colluded and connived and became a party in interest with the said defendant Van Blaricum in the conduct of said unlawful business at the beginning of the same as aforesaid, and became interested in the profits and proceeds of said business, and received a part of said profits for its aid and participation in said business.” It is established without conflict of evidence, and mainly by the testimony of the defendant Van Blaricum, whose presence' at the trial of the cause in Hancock county was procured on the second day of such trial through the service of a subpoena in Marion county and the payment of witness fees to him by appellee, that from December 24, 1901, until the time of the trial, June 13, 1902, he kept a saloon in the city of Indianapolis without any license to do so, [546] The testimony also tends to show that he made a note to the appellant brewing company for $350 in payment for a license, which it agreed to get for him. The note had not been paid, and it is not shown that any attempt had been made by the brewing company, or anyone else, to procure any kind of a license. Van Blaricum testified that the agent of the brewing company notified him over the telephone that a license had been granted. The agent denied having done so, but the finding of the jury was against him. The building in which Van Blaricum carried on his trade was leased to him by the owner on December 7, 1901. On that day the first instalment of rent was paid by the brewing company. It paid the rent thereafter on the 1st days of January, February, March, April, May, and June, 1902, and on February 3d Van Blaricum assigned all his interest in the lease to it. Van Blaricum and the brewing company had an agreement by which he “would handle nothing else than our beer.” It delivered to him before January 19, 1902, merchandise on various dates, amounting to $99, and up to the time of the trial to $838.80. The saloon was not only run without a license this entire time; but it was kept open every Sunday from morning until night. It is not denied that appellee’s son on Sunday, January 19, 1902, died of acute alcoholism, after spending the greater part of the day in this saloon. He was taken to his mother’s house, put on the doorstep in the evening, and either was dead when she discovered him, or died shortly thereafter. When two or more persons engage in the prosecution of an illegal enterprise, and in the violation of the law, it is elemental that each one of them becomes responsible for all the consequences resulting therefrom. The gravamen of this action is the unlawful sale of intoxicating liquor. If the evidence tends to show that the brewing company was a party to such sale, then the verdict against it under the allegations of the complaint as to collusion can not be [547] set aside. Severinghaus v. Beckman, 9 Ind. App. 388; Mendenhall v. Stewart, 18 Ind. App. 262. The law regards substance, not form. If in fact defendant was a party to the illegal sales of liquor by reason of which appellee’s son met his death, it is quite immaterial how its relation to the business was cloaked. The charge of collusion permits proof of its true attitude and connection therewith, if any. There is no room for division of responsibility. Van Blaricum can not be allowed to defend himself by casting responsibility upon appellant, because of its failure to get the license after having taken his note for the price, and informed him that it had been granted. Neither can appellant evade its responsibility by its manner of keeping books. The question was, did these parties participate in the illegal business which caused the young man’s death ? The evidence shows that appellant identified itself with the business from the time the room was rented. It furnished every element that was necessary except the man to sell. That was Van Blaricum. It undertook to get a license. It is not shown to have made or caused any application to be made. It paid for the room and furnished the liquor knowing that it was being sold contrary to law, as is infer-able from the fact, in connection with others, that its bills were furnished at different times, and in relatively small amounts. The sales of liquor made by it to Van Blaricum were illegal. Terre Haute Brewing Co. v. Hartman, 19 Ind. App. 596. The verdict is' not without support in the evidence, and it is not material what relations the parties, as between -themselves, intended to create. Judgment affirmed. Henley, C. J., and Black, J., concur in result. Robinson and Comstock, JJ., concur in opinion. Wiley, P. J., dissents.