State ex rel. Dark v. Mann

Roby, J. Action by appellant against appellees on a bond executed by James M. Mann, as principal, and by the Terre Haute Brewing Company and Maurice Donnelly, under the statute authorizing the sale of intoxicating liquors. Demurrers were sustained to the complaint, and the sufficiency of that pleading is the sole question for consideration. It is averred therein, in substance, that plaintiff’s husband, Stephen G. Dark, an architect who had built up an extensive and profitable business, and who for several years had been addicted to the excessive use of intoxicating liquors, had, within the last eight or ten months, become an habitual drunkard; that he was a constant visitor at the saloon of defendant Mann; that plaintiff called upon said Mann, informed him that she Avas the Avife of Dark, Avhom Mann and his bartenders Avell knew, and notified him not to sell or give any more whisky or other intoxicating liquors to her husband; that she requested Mann to say whether she should put in writing her notice not to sell her husband any more liquor’, and that he informed her that she need not go to that trouble — that the parol notice would be all that he Avould require — and that her husband, Stephen G. Dark, should not have another drink of intoxicating liquor in his saloon, whereupon plaintiff again, by parol, notified said Mann and his bartenders never again to sell or give her husband intoxicating liquor; that Mann and his bartenders have continued, from the time of staid notice to the bringing of the action, deliberately to sell and to give to said Dark, husband as aforesaid, on Sundays as Avell as week days, all the intoxicating liquors that he desired, and as a result said Dark has been continuously beastly drunk, and that while in that condition he commits disgusting acts, etc. [122] The condition of appellee Mann’s bond (following the form of §8319 Burns 1908, §5315 R. S. 1881), is as follows: “If said James M. Maun shall keep an orderly and peaceable house and shall pay all judgments for civil damages growing out of unlawful sales that maj'' be assessed against [him] as provided for in such acts, then this obligation is null and void, else to remain in full force and virtue in law.” Section 2485 Burns 1908, Acts 1905, pp. 584, 720, §574, is as follows: “Whoever, directly or indirectly, sells, barters or gives away any spirituous, vinous, malt or other intoxicating liquor to any person who is in the habit of becoming intoxicated, after notice shall have been given to him, in writing, by any citizen of the township or ward wherein such person resides, that such person is in the habit of becoming intoxicated, shall, on conviction, be fined not less than $50 nor more than $100, to which may be added imprisonment in the county jail or workhouse not less than thirty days nor more than one year, and such person may be disfranchised' and rendered incapable of holding any office of trust or profit for any determinate period.” Section 8355 Burns 1908, §5323 R. S. 1881, is as follows: “Every person who shall sell, barter, or give away any intoxicating liquors, in violation of any of the provisions of this act, shall be personally liable, and also liable on his bond filed in the auditor’s office, as required by section four of this act [§5315 R. S. 1881], to any person who shall sustain any injury or damage to his person or property or means of support on account of the use of such intoxicating liquors, so sold as aforesaid, to be enforced by appropriate action in any court of competent jurisdiction.” Appellees urge that the complainant cannot avoid giving written notice by attempting to show it was waived, because the parts of a criminal statute, necessary to constitute the offense cannot be waived, and that the attempt of Mann to waive the giving of written notice would not bind him or his sureties. [123] This is an action to enforce a civil, not a criminal liability. “A party may waive a right in his favor created by statute, the same as any other.” Tombs v. Rochester, etc., R. Co. (1854), 18 Barb. 583, and see Beecher v. Dacey (1881), 45 Mich. 92, 7 N. W. 689; Phyfe v. Eimer (1871), 45 N. Y. 102. Appellee Mann expressly waived the rights given by the statute for his benefit and protection — to have the notice given in writing — and he cannot be permitted to raise the objection that it was not in writing. “If he may, he is allowed to avail himself of what is substantially a fraud. Parties to suits at law may assert their rights to the fullest extent; but neither a plaintiff nor a defendant is at liberty to deceive, either actively or passively, his adversary, and a court whose province it is to administer justice, will take care that on the trial of every cause neither party shall reap any advantage from his own fraud. ’ ’ Shutte v. Thompson (1872), 15 Wall. 151, 21 L. Ed. 123. If the judgment were recovered against Mann alone, and an action were afterward brought on the bond, the engagement of the sureties being “to pay all judgments for civil damages growing out of unlawful sales, ’ ’ etc., the sureties would of course be liable. The fact that the action is brought against both in 'the first instance does not change the legal liability of either. Appellant Dark alleged the continued drunkenness of the husband, the sale or gift to him of intoxicating liquors while drunk, and the sale or gift on Sundajq and permitting him to be in the saloon on Sunday. These sales or gifts were unlawful (§§2484, 2492, 8326 Burns 1908, Acts 1905, pp. 584, 720, §§574, 579, Acts 1895, p. 248, §3), and áre admitted by the demurrers. The claim that appellant has, by the theory of her case, excluded considerations of unlawful sales made to appellant’s husband while intoxicated and on Sunday is groundless. The facts pleaded show the recovery to be sought for damages caused by the unlawful sales specified. The prohibition of sales to an intoxicated person is made by §2484, supra, and that a violation thereof gives a right of [124] action to the aggrieved party is unquestioned. State, ex rel., v. Terheide (1906), 166 Ind. 689; Slate, ex rel., v. Soale (1905), 36 Ind. App. 73. The judgment is reversed, with instructions to overrule the demurrers. Watson, C. J., and ITadley, J., concur.