
    INTOXICATING LIQUORS
    [Cuyahoga (8th) Circuit Court,
    February 1, 1909.]
    Winch, Henry and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Marvin.
    Rose Hanzel v. Charles Telschow.
    N,o Recovery for Injury to Third Person if Sale of Intoxicants was Lawful.
    No recovery can be had under Secs. 4357 and 4358 R. S. (Secs. 6203 to 6205 G. C.), from one who has sold liquor to another who injured plaintiff while intoxicated, unless the sale of liquor was unlawful.
    Error.
    
      E. M. Bull and W. C. Rogers, for plaintiff in error.
    W. T. Clark, for defendant in error.
   HENRY, J.

Upon demurrer to the petition sustained, the court of common pleas rendered a judgment for the defendant below. The action was brought under Secs. 4357 and 4358 R. S. (Secs. 6203 to 6205 G. C.), to recover damages alleged to have been sustained by the plaintiff in consequence of the sale by the defendant of intoxicating liquors to her husband, whereby he was made drunk, and while in that condition inflicted the injuries complained of.

The point upon which the decision below turned was that the sales were not alleged to be unlawful; but it is urged here that the necessity of pleading and proving unlawfulness under the authority of Baker v. Beckwith, 28 Ohio St. 314, and Lyon v. Fleahman, 34 Ohio St. 151, is now obviated by the provisions subsequently incorporated into the law by 72 O. L., 35, and 93 O. L., 371, providing for notice.

The Supreme Court has-not yet construed the requirement of notice in Sec. 4358, as bearing upon the alleged enlargement of the liability created by Sec. 4357, but it has passed upon the effect of the general notice in this behalf formerly required thereby and by Secs. 4359 and 4360 R. S., now repealed, and has clearly intimated in Mullen v. Peak, 49 Ohio St. 447, 458 [31 N. E. 1077], and Casey v. Painter, 50 Ohio St. 527 [38 N. E. 24], that those provisions as to notice did not obviate the necessity of pleading and proving the unlawfulness of the sales of liquor relied on to make out a case of liability, under Sec. 4357. The opinion of the court in Kolling v. Bennett, 10 Circ. Dec. 81, (18 R. 425), implies that the same requirement is deemed to exist still under the present statute.

We feel bound by the construction which the Supreme Court has put upon Sec. 4357, and adhered to after the element of notice was incorporated by the general assembly into the law. The judgment is therefore affirmed.

Winch and Metcalfe, JJ., concur.  