4 Willson 78 | Tex. App. | 1890
Opinion by
§ 51. Liquor dealer’s bond; suit upon by party aggrieved; case stated. This suit was filed by appellee, Mrs. E. J. Glass, in the county court, April 11, 1889, to recover of John McGuire, as principal, and A. Uldeman and Gus Levy, as sureties, on a retail liquor dealer’s bond, under the act of March 29, 1887, the sum of $500, liquidated damages, for selling whisky to her son, Joseph Glass, a minor. The defendants, John McGuire, A. Uldeman and Gus Levy, answered, pleading general and special exceptions and general denial, and the defendant John McGuire further specially answered that, if he sold whisky to Joe Glass, he did not know that said Glass was under the age of twenty-one years; on the contrary, he avers that, at the time of said sale to the said Joseph, he, the said Joseph, informed said McGuire that he was twenty-two years old, and defendant had no reason to doubt his statement. The case was tried May 9, 1889,-before a jury, and resulted in a verdict for the plaintiff for the sum of $500 damages, and thereupon judgment was entelad in favor of the plaintiff for the sum of $500, from which defendants appeal.
The first error assigned is the overruling of defendants’ exception to plaintiff’s petition, said exception being to the effect that the plaintiff could not maintain the suit in her own name; that, as the bond is made payable to the state of Texas, a suit thereon, to recover for a breach thereof, must be in the name of the state of Texas. This exception is answered by the statute, it being
§ 52. Selling liquor to minor; want of Jcnoivledge of minority no defense to suit on bond; construction of statute. Appellant’s second assignment of error calls in question the correctness of the charge of the court, in that said charge authorizes a verdict for the plaintiff, regardless of whether or not the defendant McGuire, at the time he sold the liquor to the minor, had reason to believe, and did believe, that said minor was twenty-one years old. A special instruction was requested by the defendants, and refused by the court, to the effect that, if the evidence showed that at the time McGuire sold the liquor to the minor he had reason to believe, and did believe, that he was selling it to an adult, the verdict should be for the defendants. It is strongly argued by counsel for appellant that if the sale was made by McGuire with no intention of violating the law or his bond, he believing, and having reason to believe, that the party purchasing was not a minor, he did not by said sale breach his bond. If this were a criminal prosecution for selling liquor to a minor, the burden of proof would devolve upon the state to show that the sale was knowingly made; that is, made with the knowledge that the party buying was a minor. This is so by force of the penal statute, which expressly requires that the act should be knowingly committed. [Penal Code, art. 376; Hunter v. State, 18 Tex. App. 444.] But there is no such restriction in the statute, or in the condition of the bond which we are now considering. The word “ knowingly ” does
§58. Constitutionality of the liquor bond statute. Appellant attacks the constitutionality of the statute under which the bond in question was executed, contending that some of the conditions of the bond .prescribed by said statute are violative of organic law. These same questions have heretofore undergone the consideration of this court, and have been determined in favor of the validity of the statute. We will not enter upon a further discussion of the questions, but will merely cite former decisions, to which we adhere. [Bell v. State, 28 Tex. App. 96; 24 Tex. App. 428. See, also, Goldsticker v. Ford, 62 Tex. 385.]
§ 54. Non-joinder of party plaintiff; objection of must be raised how. Another question to be considered and determined is the right of Mrs. Glass to maintain this suit. It appears from her petition, and from the evidence, that, at the time of the accrual of the cause of action, and at the time of the institution of'this suit, she was a married woman, having been married to a man named Crutchfield, who is yet living, and from whom she has never been divorced. Said Crutchfield abandoned her and contributed nothing to her support, and, at the time of the institution of the suit, his whereabouts were unknown to her, and his abandonment had continued for about seven months prior to the institution of this suit. This question was raised in the court below by a motion to dismiss the suit, after the evidence was introduced. It was not raised by special exception or plea. If the questidn had been properly and timely presented, we are inclined to the opinion that the allegations in the petition did not entitle the wife to maintain the suit without being joined by her husband. [Ezell v.
Affirmed.