Bolen v. Still , 123 Ark. 308 ( 1916 )

Kirbt, J.,

(after stating the facts). (1) This court has already held that no statutory liability for the payment of damages occasioned by reason of liquor sold at the place of business of a retail liquor dealer is created by the bond required under the provisions of Section 5121, Kirby’s Digest. Anderson Co. v. Diaz, 77 Ark. 608; Gage v. Harvey, 66 Ark. 70. In the latter case, the court construing the statute and the condition of such bond said: ‘ ‘ They should be construed according to the general rule fixing the limit of the liability of parties for the consequences of their acts in other cases, as they in no way indicate an intent to make the liability of the saloon keeper an exception to such .rule. According to their legal effect, they bind him to pay all damages that may be the natural and proximate result of the use or consumption of liquor sold by him or his agents at his place of business. Further than this the law does not extend the liability of his bond on account of the sale of liquor.” It was there held that the saloon keeper was not liable to the payment of money lost by one who became intoxicated upon liquors sold to him and thereby so incapacitated that some third person forcibly, or by stealth, took his money away from him.

The saloon keeper’s business does not advertise him to the public as the protector of those who become his patrons, but rather to the contrary, as said in Anderson v. Diaz, supra. The testimony herein shows that the deceased, a man of mature years and reasonable intelligence, came with a companion of like kind to the place of business of appellees where both purchased liquors presumably for their own consumption and both were duly sober at the time and neither drank enough liquor on the premises to intoxicate him or prevent the normal exercise of his faculties. There was nothing to indicate that the deceased, who was only slightly known to the appellees, was not such a person as was legally entitled to purchase their goods nor to cause a reasonably prudent person to anticipate that such sale would likely produce the injury it is claimed resulted therefrom.

(2) It cannot be said that the action of a saloon keeper licensed to sell liquors, in selling two quarts of whiskey to a man of reasonable intelligence, 56 years of age, and sober at the time, with nothing to indicate that the purchaser drank to excess, was guilty of such negligence as would entitle the administrator of deceased to recover damages for his death, caused by the fall from his horse .while intoxicated from drinking the liquor so purchased, after leaving the saloon.

There being no statutory liability under the bond, and no evidence of any negligence on the part of the saloon keeper in making the sale of the liquors to the deceased, his administratrix was not entitled to recover, and since appellees were entitled to a directed verdict, no prejudice could have resulted from the giving of said instruction number 6, if it was incorrect.

The judgment is affirmed.