
    [No. 3903.
    Decided July 31, 1901.]
    J. Burkman et al., Respondents, v. Peter Jamieson, Appellant.
    
    1NTOXICATING LIQUORS — INJURIES FROM SALE — LIABILITY OF LESSOR —RIGHT OF ACTION AGAINST TENANT.
    Where a lessor of premises has been compelled to pay a judgment for damages against him by reason of the injuries resulting from the sale by his tenant of intoxicating liquors on the leased premises, under Bal. Code, §§ 2945, 2947, which provide that the owner or lessor of premises wherein intoxicating liquors are kept for sale shall be severally and jointly liable with the person selling for injuries to person or property or means of support caused to another by reason thereof; and any owner or lessor of real estate, who shall pay any money on account of such liability, for any act of his tenant, may, in a civil action, recover of the tenant the moneys paid, a lessor who has been compelled to pay a judgment against himself for the act of a tenant has no right of action against his tenant, when the latter had not been made a party to the original action fixing the liability of the lessor.
    Appeal from Superior Court, King County. — Hon. K. D. Benson, Judge.
    Reversed.
    
      Preston & Embree, for appellant.
    
      William Parmerlee, for respondents.
   The opinion of the court was delivered hy

Mount, J.

Under § 2945, Bal. Code, Bridget Fitzgerald and her minor child, by a guardian ad litem, instituted separate actions for damages in the superior court of King county against respondents and one J. D. Bowman, as lessors and owner, respectively, of certain premises where intoxicating liquors were kept for sale. Appellant, who was their tenant, and who was the proprietor of the saloon operated on said premises, was not made a party to either of said actions, had no notice of the pendency thereof, and did not appear therein. On April 20, 1900, said Bridget Fitzgerald and said minor, by its guardian ad litem, each recovered judgment in said action for the sum of $525. Thereafter respondents, Burkman Brothers, paid these judgments, and brought this action against appellant to recover the amount so paid. The complaint alleges substantially that the respondents leased to the appellant a certain building in the city of Seattle, and that the appellant occupied said building as a saloon, wherein intoxicating liquors were bought and sold, and that the appellant knowingly permitted therein the sale of intoxicating liquors in the month of September, 1899 ; that in said month in said building appellant sold and disposed of, and caused to be sold and disposed of, intoxicating liquors to one William Weir and to one Bichard Fitzgerald; and that by reason of said sales and disposal of said intoxicating liquors to said Weir and Fitzgerald the said Weir made an assault upon the said Fitzgerald, and did beat and wound him, from the effects of which, and the intoxicating liquors sold as aforesaid, the said Fitzgerald died in said saloon, and that said death would not have been caused but for and on account of the intoxicating liquors sold to him and said Weir by the appellant. It is further alleged that Bridget Fitzgerald, widow of said Bichard Fitzgerald, and Georgiana Fitzgerald, minor child of said Richard Fitzgerald, instituted in the superior court of King county their separate actions against these respondents and one J. D. Lowman, and that upon the trial of said actions judgments were rendered in each of them in favor of plaintiffs therein and against these respondents and said Lowman for the sum of $525 on account thereof, and that respondents had paid the same. Respondents pray for judgment against appellant for the amount so alleged to have been paid by them and on account of said judgments. To this complaint a demurrer was interposed by appellant upon the ground: (1) that there was a misjoinder of parties; and (2) that the complaint did not state facts sufficient to constitute a cause of action.' This demurrer was overruled, and exception taken and allowed. An answer amounting to a general denial was thereupon filed. The cause was tried to the court and a jury.' In the course of the trial the judgment in Fitzgerald v. Lowman and others was offered and admitted in evidence, over the objection of appellant. ISfo injury to .Mrs. Fitzgerald or her minor child was alleged or shown at the trial, other than was shown by the judgments above named. At the close of the evidence for plaintiffs, appellant moved for nonsuit, which was denied. Appellant then introduced evidence tending to prove that no liquors had been sold or given to Weir or Fitzgerald, and rested. Respondents then moved the court to discharge the jury, au4 make findings for plaintiffs. This motion was granted, and judgment entered thereon. Appeal is taken from this judgment.

This appeal turns upon the question whether appellant is bound by the judgment in Fitzgerald v. Lowman et al., to which action he was not a party, which he had not been notified to defend, and in which he had not appeared. If he was bound, under the law, by that judgment, then the complaint stated a cause of action, the judgment being conclusive upon Mm as to all tbe facts necessary to sustain it. If the said judgment was not conclusive upon him, then it became necessary for respondents to allege and prove, in addition to tbe allegations of the complaint, tbat Mrs. Fitzgerald and her minor bad been injured in means of support, and tbe amount thereof, not exceeding tbe judgment. It is tbe common law rule tbat all wbo are not parties to a judgment, nor privies to sucb parties, are wholly free from tbe estoppel of tbe judgment. 2 Black, Judgments, 600; 1 Freeman, Judgments, 154.

This rule prevails, unless abrogated by statute. Section 2945, Bal. Code, makes tbe owner or lessor of premises wherein intoxicating liquors are kept for sale severally and jointly liable with tbe person selling, where injury in person or property or means of support is caused to, another by reason thereof. Section 2941, Bal. Code, provides. as follows:

“Any owner or lessor of real estate, wbo shall pay any money on account of bis liability incurred under this chapter, for any act of bis tenant, may, in a civil action, recover of sucb tenant tbe money so paid.”

Tbe object of these sections evidently was to make tbe tenant liable for tbe damages be causes. He is liable to tbe persons injured, and liable also to tbe landlord or lessor wbo has paid money for liability incurred by tbe act of tbe tenant, either in a joint or several action. Tbe liability of tbe owner or lessor depends upon tbe liability of tbe tenant. If' there is no liability of tbe tenant, there can, of necessity,’ be no liability of tbe lessor or owner. Before there can be any recovery -against tbe lessor or owner, tbe liability must be established against tbe tenant; and a judgment against tbe landlord must depend upon tbe liability of tbe tenant. If tbe landlord does not require the tenant to defend or give him an opportunity to do so, he must assume the burden of maintaining the liability against the tenant. This statute does not give a right of action for money paid without liability, but on account thereof. Where a person is made liable in damages for any act, he ought, in justice, to have a right to defend against a claim therefor. It is but common right that he should have his day in court, and an opportunity to plead •and prove a defense if he have one. Under the rule contended for by respondents, viz., that the judgment in this 'case is conclusive against the appellant, this principle, which is as old as the law itself, might in many instances, ¡be set aside. ¡For example, it would be possible for an owner or lessor of premises, who had been severally sued on account of an act of his tenant, to compromise such action without notice to the tenant either of the suit or compromise, and thereupon in good faith have a jury called, and proof taken, and a verdict and judgment for an amount agreed upon, which judgment would be conclusive against the tenant, who might have a perfect defense. And again, the tenant may have settled a claim in full without suit, and an action for the same injury be brought against the owner without knowledge of the tenant, and judgment recovered which would bé binding upon the tenant. Or again, the owner might be sued severally, and a recovery ¡had, without notice to the tenant, for an injury which had once been defeated by the tenant in an action against Mm, and against which he had a perfect defense. If the judgment against the owner is binding upon the tenant, he could not be heard to defend against it in a suit by the owner to recover from him. These conditions and others would be possible under the construction urged by respondents. It was evidently not the intention of the legislature to deprive a tenant of his right or opportunity to make a defense to a claim for liability, and no fair construction of the language of tbe section quoted can make it do so. We tbink tbe owner or lessor under our statute stands in tbe nature and relation of an indemnitor or surety for tbe tenant severally liable with bim, and that, wben an. action is brought against bim, be may make bis tenant a party by giving bim a “full, fair, and previous opportunity to meet tbe controversy,” and thus avoid tbe peril and inconvenience of being required in a subsequent controversy to show tbe liability of tbe tenant in order to recover back tbe amount paid out.

A question similar to tbe one bere under consideration was decided by tbe supreme court of Obio in tbe case of Goodman v. Hailes, reported in 59 Ohio St. 342, also reported in 52 N. E. 829, and tbe court held in that case that tbe judgment was conclusive. Tbe supreme court of Iowa, in tbe case of Buckham v. Grape, 65 Iowa, 535, reported in 17 N. W. Y55, and on rehearing in 22‘ N. W. 664, arrived at tbe opposite conclusion. These cases, while involving much tbe same question, turned principally upon statutes of tbe respective states, and are of little value in tbe determination of tbe question bere.

Under tbe view we have taken of tbe 'case, it follows that tbe complaint did not state a cause of action, and that tbe demurrer should have been sustained. Other errors are complained of, but we tbink tbe rulings of tbe trial court were correct, and a review of them bere would avail nothing.

Tbe judgment will be reversed, and tbe cause remanded, with instructions to tbe lower court to sustain tbe demurrer to tbe complaint, with leave to respondents to amend.

Beavis, O. J., and Eullertoh, Aktders, Hadley and White, JJ., concur.  