Myers v. Kirt

Refjo, J. 1. INTOXICAting liquors: railawiiil sale ?easedbpremicy oiSpeti-en" tlon‘ I. Defendant filed a motion in arrest of judgment, on the ground that no cause of action as against him is stated in the petition, and assigns as error the r ’ ° overruling of this motion. We think the ruling 5:5 was correct. It is alleged in the petition that defendant leased the building to Kirt for the purpose of being used as a saloon; that Kirt sold to plaintiff’s husband beer, wine and whisky, in said building, which caused his intoxication; and that defendant, Reckermire, knew that he sold wine, beer and liquors in the premises, and also knfew of said sale to plaintiff’s husband. We think these allegations are sufficient. It cannot be said that “the facts stated in the petition do not entitle the plaintiff to any relief whatever,” which is the statutory ground for a motion in arrest of judgment. Code, § 2650. If plaintiff could establish that Kirt sold her husband whisky in the [29] building, and thereby caused his intoxication, and that -defendant leased him the building for the purpose of carrying . on the business of selling such liquor, and knew of the sales to her husband, she would clearly be entitled to have any judgment which she might secure against Kirt made a lien on the premises. __ kñowiegeoí owner. II. The evidence given on the trial tended to prove sales of beer by Kirt to pi aintiff’s husband on a number of occasions in the building in question, and that Reckermire was Pre3ent on some of the occasions and knew 0f tpe saleS) and on one or two occasions drank beer with Myers in the building. It also tended to show that Myers was in the habit of becoming intoxicated. But, while there was evidence that Myers and defendant had lived in the same neighborhood for one or two years, there was no positive evidence that the latter had ever seen Myers intoxicated, or that ho had knowledge of his habit of becoming intoxcated. And there was no evidence of the sale by Kirt to Myers of any other kind of intoxicating liquor except beer; or that he kept any other kind or liquors for sale in the building. Nor was there any evidence of any other unlawful sales of beer in the building except those made to Myers. The circuit court gave the following instruction to the jury: “To entitle the plaintiff to a verdict, she must establish by a preponderance of credible testimony that, during the two years prior to May 10th, 1880, the plaintiff’s husband was in the habit of becoming intoxicated; that during said time said Kirt sold her said husband intoxicating liquors, which includes ale, wine or beer, causing his intoxication, and that defendant, Reckermire, had knowledge of and gave consent to sales of intoxioating liquors at said saloon by said Kirt to said William Myers during said period. “If all of these alleged facts are proved by said preponderance of the evidence, then plaintiff is entitled to a verdict. But if there is a failure to establish any of said-alleged facts, then defendant is entitled to a verdict.” [30] Under this instruction, the jury were warranted, in finding for plaintiff, if the evidence established the following facts: (1) that during the time named in the instruction plaintiff’s husband was in the habit of becoming intoxicated; (2) that during said time Kirt sold him beer in said building which caused his intoxication; and (8) that defendant, Reckermire, had knowledge of and gave consent to such sales. The remedy which plaintiff is seeking to enforce against the property is given by section 1558 of the Code, which is as follows: “For all fines and costs assessed or judgments rendered, of any kind, against any person, for any violation of the provisions of this chapter, the personal and real projoerty, except the homestead as now provided by law, of such person, as well as the premises and property, personal or real, occupied and used for that purpose with the knowledge aud consent of the owner thereof, or his agent, by the person manufacturing or selling intoxicating liquors contrary to the provisions of this chapter, shall be liable, and all such fines, costs or judgments shall be a lien on such real estate until paid.” Under this section, the premises in which the unlawful sales are made, if they belong to a person other than the one who makes the sales, are liable, when the owner has knowledge of and consents to the unlawful use to which they are put. This clearly is the effect of the section. The language — '“the premises and property, personal and real, used for that purpose with the knowledge and consent of the owner thereof, by the person selling intoxicating liquors contrary to the provisions of this chapter, shall be liable,” etc., is not fairly capable of any construction which would not include as an element of the liabili ty of the property a knowledge by the owner of the unlawful use to which it is put, and a consent by him to that use. Section 1539 of the Code prohibits the sale of beer to minors and to intoxicated persons, and persons in the habit of becoming intoxicated; but, with these exceptions, the sale of beer is not forbidden by the statute. The sales, then, by Kirt to plaintiff’s husband were unlawful by reason of his habit of becom [31] ing intoxicated. Except for that habit, such sales would have been perfectly lawful. To have had knowledge of and given his consent to the unlawful use of his property, the owner must not only have known that the sales were made therein, but he must also have known the particular fact or circumstance which rendered the sales unlawful. It cannot be said that the premises were occupied and used for that purpose with his knowledge and consent by the person selling intoxicating liquors contrary to law, unless he had knowledge of the fact which rendered the sales unlawful. But the instruction in question holds that the property would be liable, if Reckermire knew simply of the fact of the sales therein, and gave his consent to such sales. Under it, the judgment against Kirt may be made a lien on the property, even though Reckermire had no knowledge' that the sales were made in violation of law, and never gave his consent to an unlawful use of his property. In this respect the instruction is erroneous, and the judgment of the circuit court must be Reversed.