THE OWNER OF PREMISES.

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lose his life. The statutory liability rests on every person who has contributed to the intoxication by selling liquor, as well upon those who sell with, as those who sell without a license. The Civil Damage Act is not in conflict with the excise laws which allow the vendor to take out a license. It does not forbid the sale of liquor, but makes the vendor liable for the consequences of the sale. It imposes upon the vendor of the liquor the duty to so guard his conduct that it will produce no mischievous results. The license from a board of excise is no bar to an action under the Civil Damage Act.3 The supplying of liquor to a person who is afterwards injured, by a bartender without the knowledge or authority of his employers, and against their orders, does not exempt the employers from liability; they are liable for the acts of their agent in the business of his agency.*

THE OWNER OF PREMISES.

The statute imposes the same liability for damages upon the owner of the premises where the liquor is sold, as upon the lessee who sells the liquor. This is a salutary provision, and tends to make the owners of property exceedingly careful about the persons whom they admit into their premises, as tenants. It will be observed that the landlord is not liable unless he had knowledge that intoxicating liquors were to be sold in the demised premises. The owner has, by the statute, a remedy, if he finds his tenant is violating the law, as it is provided that the unlawful sale

I, Davis vs. Standish, 26 Hun, 612;

2,

Baker vs. Pope, 2 Hun, 556;

or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon the premises. The landlord has a great responsibility under this statute; he must see that the persons whom he permits to carry on the liquor traffic upon his premises, conduct their business in a lawful manner, and that they do not sell to intoxicated persons, habitual drunkards, etc. The landlord assumes a liability for the injuries caused by unlawful acts of his tenant when he leases premises to him for the purpose of selling liquor therein. The owner of the premises is not without protection; he can refuse to rent his property to any one who he has reason to believe will sell liquor in an injurious manner, or when he finds his tenant is violating the excise laws, he can terminate the lease. The statute compels the owner of the premises to be vigilant and careful regarding his tenants who are engaged in the business of selling liquor, and have the means at hand to produce so much injury by selling intoxicants to persons who ought not to be allowed to have access to them.

We have already seen that the owner of the prem. ises cannot be held liable for exemplary damages without proof of aggravating circumstances with which he is connected. The courts have held that the statutory liability of the owner may be imposed irrespective of whether the sale or giving away of the liquor was or was not lawful, or of the question of negligence on the part of the tenant." When vendor's wife was the owner of the premises, and had

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taken title and possession before the passage of the Civil Damage Act, it was found that she knew intoxicating liquors were sold on the premises, although she did not have charge of the bar, and it was held that because she had taken possession before the law went into effect, she was not exempt from responsibility on that account; the presumption was that the position originally taken was continued in view of the laws of the State thereafter enacted. It was also held proper to submit to the jury the question whether she had given permission for the occupation of the building with knowledge that liquor was to be sold on the premises.1 The action may be brought jointly against the landlord and the lessee who sold the liquor which produced the intoxication."

JOINDER OF DEFENDANTS.

It is improper to join as defendants in the same. action two or more persons who, separately, at different times, sold liquor to the same person, each quantity of liquor sold contributing to produce the intoxication resulting in the injury. In this case plaintiff sued jointly two vendors of intoxicating liquors and the landlord of one of them, charging in her complaint sales on the same day to her husband, the liquors sold by each contributing to produce his intoxication; her husband afterwards engaged in an altercation and was killed. The defendants demurred that they were sued jointly and the court sustained the demurrer, holding that a cause of action was stated against one vendor, and another cause against the

I, Mead vs. Stratton et al., 87 N. Y., 493;

2, Jackson vs. Brookins, 5 Hun, 530;

3, Jackson vs. Brookins, supra;

other vendor and his landlord jointly, but that a joint action would not lie against the three persons. The court stated it did not feel called upon to decide whether more than one action would lie in favor of the plaintiff, leaving that point in some obscurity. In another case the action was brought jointly against two vendors, charging a conspiracy. The court held that two separate sales by defendants severally, did not uphold an allegation of joint sale by them.'

LIABILITY FOR HARBORING DRUNKARDS.

A case was recently decided in the Superior Court of Pennsylvania which may have some bearing in determining the liability of liquor sellers under the Civil Damage Act. It appeared from the evidence that plaintiff, a minor, entered defendant's tavern, and there found one Flanagan. They both became in toxicated on liquor furnished by defendant. While plaintiff was standing on the outside of the bar engaged in conversation with the defendant who was inside the counter, Flanagan pinned a piece of paper on plaintiff's back and set fire to it, burning plaintiff's clothing nearly off, and seriously injuring him before the flames could be extinguished. The plaintiff then brought action against the tavern keeper to recover damages for the injuries sustained by the burning. The trial court directed a judgment for nonsuit, from which plaintiff appealed. The appellate court reversed the judgment and granted a new venirc. In the opinion of Gordon, J., he said: "There is no doubt that the defendant, from the position he occupied, had a full view of the room outside the bar, and

I, Morenus vs. Crawford, 15 Hun, 45 ;

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did see, or might have seen, all that was going on in it. If, in fact, he did see Flanagan setting fire to the plaintiff, and did not interfere to protect his guest from so flagrant an outrage, his responsibility for the consequences is undoubted. If, on the other hand, he was guilty of making Flanagan drunk, or if he came there drunk, and Schambacher knew that fact, he was bound to see that he did no injury to his customers. All this is a plain matter of common law and good sense, and does not depend on the act o 1854, or any other statute. Where one enters a saloon or tavern, opened for the entertainment of the public, the proprietor is bound to see that he is properly protected from the assaults or insults, as well as of those who are in his employ, as of those drunken and vicious men whom he may choose to harbor. Το illustrate the principle here stated, we need go no further than the case of the Pittsburg and Connellsville R. R. Co. vs. Pillow, 76 Penn. St., 510. In the case cited a drunken row occurred on board of one of defendant's cars, and during the quarrel a bottle was broken and a piece of glass struck the plaintiff, a peaceful passenger, in the eye and put it out; held that the company was responsible for the injury thus done. * * * If thus a railroad company is liable for the conduct of drunken men who may chance to board its cars, much more the tavern keeper, who not only permits drunken men about his premises, but furnishes liquor to make them drunk, and who is thus instrumental in fitting them for the accomplishment of such an insane and brutal trick as that disclosed by the evidence of the case in hand."

I, Rommell vs. Schambacher, 36 Alb. L. Js. 342;