O'Banion v. De Garmo

Ladd, J. [141] i. action on amendment: limitation of action. [140] The petition was based on a bond describing the premises at which the sales of intoxicating liquors to [141] plaintiff's husband were made as lot 11 in block 18. The amendment averred that such sales occurred at another place, namely, lot 13 of the same block, and sought recovery on a second bond so describing the premises. The sales occurred January 3, 1899, in a building on lot 13, and this amendment was filed September 12, 1901, more than two years after the alleged wrong. Two questions arise: (1) Did the amendment set up an entirely new cause of action? (2) Did proof of sales on lot 13 tend to establish a breach of the bond sued on in the petition? It must be kept in mind that the action is on the bond, and we have no concern with the principal’s independent' liability. It is also well to remember that thé foundation of the action is the sale of the intoxicating liquors, and the consequent intoxication of the husband, occasioning damages to plaintiff. The intoxication was the direct injury resulting from the wrongful act of selling the liquor to the person drinking it, and such injury is the cause of action. That to' the wife is wholly consequential. Emmert v. Grill, 39 Iowa, 690. Paragraph 3, section 3447, of the Code, expressly limits the period within which actions may be maintained therefor to two years: “Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty within two years. ” This suit is based on an injury to the relative rights of the wife, and on a contract, to wit, the bond exacted in compliance with the provisions of the mulct law. This alone disposes of the contention that the amendment to the petition did not set up a different cause of action. True, the injury consisted in producing the intoxication, but liability tierefor was determined by the bond, and, after the lapse of the statutory period, the obligation by it created to pay damages ceased. State v. Dyer, 17 Iowa, 227; District Township of Boomer v. French, 40 Iowa, 601. [142] 2. sale of tiononbond, The appellant, however, insists that the law does not require the definite location of the saloon to be fixed, and that therefore sales on either lot were in violation of the conditions of the first bond, describing lot 11. We think otherwise. In the first place the mulct taxis made by the statute a lien on the real property wherein or whereon the business is conducted. Section 2432, Code. Secondly, the assessor is required to report the definite locations. See ' section • 2438. And a list of the properties is to be kept by the auditor and transmitted to the treasurer. Section 2437, Code; paragraph 12, section 2448. To secure the bar to the penalties of the prohibitory law, consent of resident freeholders owning real estate within fifty feet of the building where the business is to be carried on must be obtained; and it cannot be located within three hundred feet of a church or school building, or within a half a mile of an agricultural fair. One of the statutory conditions of the bond is “for the payment of all damages that may result from the sale ■of intoxicating liquors upon the premises occupied by the obligor.” ■ See Code, section 2448, paragraph 3. These provisions contemplate the particular location of the saloon, and it is for damages occasioned by the sale of intoxicating liquors there, and not elsewhere, that the bondsmen are liable. Possibly an omission of the description in the bond might not invalidate it. See Starr v. Blatner, 76 Iowa, 356. But when it is inserted the sureties ought not to be held for damages resulting from sales at places not contemplated. See Carter v. Nicol, 116 Iowa, 519. The rulings of the court were correct. — Aseirmext.