Cox v. Thompson

This is a suit for the recovery of statutory penalties for breach of a liquor dealer's bond. P. O. Cox is the principal in the bond and the other defendants are sureties. The petition charges that the defendant Cox breached the bond by permitting W. W. Thompson, a minor, to enter and remain in his saloon on three separate occasions. The jury found these allegations true, and returned a verdict for the plaintiff for $3,000. Judgment was entered accordingly, and the defendants have appealed. These findings are amply supported by testimony, and are not challenged in this court.

The first assignment of error complains of the action of the court authorizing a verdict for the plaintiff upon a preponderance of testimony, the contention being that, as this is a penalty suit, the plaintiff rested under the duty of establishing his case beyond a reasonable doubt. It has been repeatedly held in this state that in all civil cases the jury should decide according to the preponderance of the evidence. (Sparks v. Dawson, 47 Tex. 145; Heiligmann v. Rose, 81 Tex. 222; Waters-Pierce Oil Co. v. State, 19 Texas Civ. App. 1[19 Tex. Civ. App. 1].) It seems to us that the rule referred to is particularly applicable in this case, which is an action founded upon the breach of a written contract. The fact that the damages recoverable are fixed in amount by a statutory enactment, and are in fact a penalty, does not change the fact that the suit is based upon a written contract; and, such being the case, we see no reason why the plaintiff should be required to prove a breach of the contract by any higher degree of testimony than is required in any other suit founded upon a breach of contract.

The third, fourth and sixth assignments assail the verdict upon the theory that there was no proof that P. O. Cox was a licensed liquor dealer, as alleged by the plaintiff. That objection was not urged against the verdict in the court below, and, for that reason, it can not be urged here.

Several objections are urged against the charge of the court, none of which is regarded as tenable. The charge was quite full, and submitted the case to the jury in as favorable a manner to the defendants as they were entitled to have it submitted.

The point is made that P. O. Cox's application for license to do business designated two places. The application described the place of business as "at number — J. A. Gamble Building, in the town of Hico, County of Hamilton, and part of lots numbers 11 and 12, in block number 3, division one." It does not seem to us that this description necessarily embraces two separate places of business. The Gamble building may have been located on parts of lots numbers 11 and 12, in block number 3, division one. But, if appellant's contention is correct, and the description does include two separate places, it does not follow that the plaintiff was not entitled to recover. In Green v. Southard, 94 Tex. 470, it was held that the bond of a liquor dealer is not invalid, and will support a recovery by one aggrieved by its infraction, though the license and the application therefor contain no designation of the particular house in which the business was to be conducted.

Numerous objections are urged against the validity of the statute requiring retail liquor dealers to give bond in the manner prescribed by the statute. These have all been considered, and are overruled. The most serious of these objections is the one which urges that the statute referred to is obnoxious to the fourteenth amendment to the Federal Constitution, as construed in Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 13 Sup.Ct. Rep., 431. However, since this case was submitted, our Supreme Court has decided that identical question against the contention of appellants. (Douthit v. State, 97 Tex. 344.)

There are some other questions presented in appellants' brief, all of which have received due consideration, and are decided against appellants.

No reversible error has been shown, and the judgment is affirmed.

Writ of error refused.

Affirmed.