At the time in suit the law commonly known as the local option law was in force in Erath County, and appellee was engaged in the business, in Dublin, in that county, of selling by retail to the public non-intoxicating beverages. Appellant manufactures and sells to retailers what is denominated in the record a “soft drink” called “Hiawatha,” made out of malted barley, rice, hops and artesian water, and containing between 1.5 and 2 per cent of alcohol. *18 It is claimed by appellant that the concoction does not contain sufficient alcohol to produce intoxication in any person when drunk by him in moderate quantities. Appellee purchased from appellant, through its authorized agent, a large quantity of the drink, and began to sell it as a beverage. Later he was tried and convicted, and on appeal the judgment was affirmed, for selling malt liquor capable of producing intoxication, without first having procured a license for the purpose of selling said liquor, and without first having paid the taxes due to the State and county. The fine, costs and attorney’s fees paid by him amounted to $750. It was on evidence, decided by the jury, that the Hiawatha drink he sold was a malt liquor capable of producing intoxication, that he was held guilty of violating the tax and license law. There was evidence in that trial, as in the instant record, going to show that the drink is non-intoxicating, as well as evidence going to show that it is intoxicating. The transaction, which is relied on in the proof as the basis of the instant suit, as to the purchase and sale, is best given in the language of the appellee: “Some time in March, 1908, I met Mr. Tell Eoberts, when he came to my place of business in Dublin representing the Houston Ice and Brewing Company, the defendant. At that time I was engaged in selling soft drinks in Dublin, Texas. Mr. Eoberts proposed to sell me a barrel of Hiawatha. I told him I did not care to handle it unless it came under the law, and was not a violation of the law. I had no State license at the time. Mr. Eoberts told me that the Hiawatha was non-intoxicating and that any little child could drink it, and that the company would guarantee that it would not intoxicate. I then told Mr. Eoberts that if it was all right I would try it. He then said he would send and get me a barrel of it and place it with me. I bought the first barrel from him, and afterwards and altogether sold seven or eight barrels of it.” He further stated that he relied upon the statements of Mr. Eoberts as to the non-intoxicating qualities of Hiawatha as a drink, and that he would not have bought it or sold it except for the representation made that it was non-intoxicating. Claiming in his petition that the appellant, through its agent, in making the sale of the Hiawatha to him as a non-intoxicant and a concoction that could be lawfully sold in local option territory, “falsely and deceitfully represented to plaintiff that a certain liquid concoction called Hiawatha was non-intoxicating, and told this plaintiff at said time and place that this defendant warranted and guaranteed said Hiawatha to be nonintoxicating,” the appellee sues to recover the sum of the fine, costs and attorney’s fees in the criminal prosecution, and for mental anguish suffered on account of the arrest, trial and conviction as actual damages. The case was tried to the court without a jury, and judgment was rendered against appellant for the $750 paid out in the criminal prosecu-' tion, and $500 for mental anguish and humiliation in being arrested and convicted, as actual damages.
After Stating the
Case.—The appellee makes the contention, in effect, in the case, that in the sale of the liquid concoction called Hiawatha
*19
the appellant, through its agent, practiced the deceit on him that it was non-intoxicating; and that as a result of such wrongful act committed hy appellant he has been plunged into a criminal prosecution and conviction for failure to pay an. occupation tax required by law, which caused him to incur the penalties and costs of the law and to suffer mental anguish for conviction of such crime. The chief question presented by the assignments of appellant is, we think, whether the appellee is entitled to recover as actual damages, as by the judgment he has, such character of damages as the penalty and costs incurred and mental anguish suffered in consequence of' his conviction for violating a penal law of the State. It may be conceded that in an action for deceit, as here, the law endeavors to give to the defrauded party the damages which result as the legal consequence, or directly, or naturally from such fraud. But this rule in allowing such damages as result from the fraud presupposes the claims to have the support of the law and be not in contravention of public policy. It results, therefore, that if the claM has no support in law as against public policy there can be no relief allowed the party, even though the damages would not be legally classed, if the claim were lawful, as too remote. And as the character of the claim here is that of a party himself committing a public offense seeking redress against the alleged procurer of his unlawful act, it would appear that the decision of the question presented would more properly turn on whether the damages should be denied as against public policy, than whether they are too remote. So, if the principle of public policy should apply and govern, it is not necessary to consider any question of whether there has been shown, or not, the conjunction of the wrong and damage, as that, even if the damages are not legally remote, they could not be allowable. The question bears analogy to those cases in which an indemnity is claimed for acts obviously unlawful, like breaches of the peace, and to those cases in which the conduct of the party is in contravention of public policy. The case of Cumpston v. Lambert, 18 Ohio, 81,
As it manifestly appears that the appellee’s cause of action is not such-as the law will permit the particular recovery sought, the judgment will be reversed and here rendered for appellant with all costs.
Reversed and rendered.