Carlton v. Krueger

• Decision Date: 14 January 1909
• Citation: 115 S.W. 619
• Parties: CARLTON v. KRUEGER et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

115 S.W. 619

CARLTON v. KRUEGER et al.^†

Court of Civil Appeals of Texas.

January 14, 1909.

Appeal from District Court, Hamilton County; N. R. Lindsey, Judge.

Action by J. S. Carlton against G. W. Krueger and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Langford & Chesley, for appellant. J. L. Lewis and A. R. Eidson, for appellees.

HODGES, J.

This suit was instituted by the appellant against the appellee G. W. Krueger and the sureties on his bond as a liquor dealer for damages for two infractions thereof. It is alleged that on two different occasions Krueger sold intoxicating liquors to the minor son of the appellant. From a verdict in favor of the defendants in the court below, the appellant prosecutes this appeal.

The testimony shows that Krueger was engaged in the business of selling intoxicating liquors in the town of Hamilton during the month of July, 1904, and that he sold such liquors to the appellant's minor son, Blaine Carlton, on two different occasions. The appellant testified that his son was approximately 19 years old at the time the sale was made. The defense interposed by the appellee was a general denial and a special plea to the effect that, if said intoxicating liquors were sold to the appellant's minor son, it was done in good faith and with the belief that the minor was 21 years of age, and that he had good reason to believe that said minor was 21 years of age. At the time of trial it appears that a witness by the name of Talley, who had been summoned at the instance of the defendant in the court below, was absent, and, in order to prevent a continuance, plaintiff below made the following admission: "It is admitted that Blaine Carlton, plaintiff J. S. Carlton's son, stated to J. L. Talley on the morning and prior to the alleged sale that he, the said Blaine Carlton, was over 21 years old, and that at this time the said Blaine Carlton was intoxicated, and on two or three different occasions made the above statement to Talley, and that from the physical appearance of the said Blaine Carlton the said Talley would take the said Carlton at that time to have been over 21 years old, and that the appearance of the said Carlton at that time indicated that he was a person over the age of 21 years. The truth of this statement is admitted by the plaintiff." This was the only evidence offered by the appellee upon the trial. From a verdict and judgment for defendants, the appellant has appealed.

The first assignment of error complains of the following portion of the court's general charge: "But in this connection you are instructed if you believe from the evidence that at the time the said defendant Krueger sold the intoxicating liquor to the said Blaine Carlton, if he did so, he, the said Krueger, in good faith believed that the said Blaine Carlton was then 21 years of age, and that the said Krueger had good grounds for such belief, you will find for the defendants." It is claimed that this charge is not warranted by the evidence adduced upon the trial, in that there was no evidence showing or tending to show that Krueger believed that Blaine Carlton was 21 years of age, that the only evidence which tended to raise that issue was that which grew out of the admission made by appellant as to statements to Talley, and which was to the effect that Krueger might have had good grounds to believe that Carlton was 21 years old or over. We think this assignment should be sustained. When the appellant proved that his son was a minor at the time the alleged sales of intoxicating liquors were made to him, he made out a case which prima facie entitled him to a recovery. The only effort made to meet this prima facie case with defensive testimony was that contained in the facts admitted as to the statements and appearance of the minor about the time he made the purchases. The statute as amended provides that, where the sale is made in good faith, with the belief that the minor was of age, and there are good grounds for such belief, that shall be a valid defense to any recovery on such bond. The defense here given is that the sale must be made in good faith with the belief that the minor was of age. There was no evidence of the belief entertained by the appellee regarding the age of the minor at the time he made the sale. Krueger was present at the trial and was at one time placed on the stand as a witness, but at no time did he offer to testify as to his belief regarding the age of the minor, or good faith, in making the sale. The mere fact that the minor may have had the appearance of being of age was no defense, unless accompanied by the other statutory requisites. Whatever force this fact may have been entitled to as a circumstance tending to show that Krueger did in reality entertain that belief is lost by the further fact that Krueger was present and failed to testify. For aught that appears to the contrary, Krueger may have actually known the age of the minor. If he did not, it was incumbent on him to show that fact. This he failed to do, and was not entitled to the charge complained of.

Appellant also complains of the following special charge given at the instance of the defendant: "First, that it is true that Blaine Carlton, the alleged minor son of plaintiff, told the witness J. L. Talley prior to the sales of said alleged intoxicating liquors to said Blaine Carlton, and on the day of said sale, that he (Blaine Carlton) was over 21 years of age. Second, that on the day of said alleged sale of said alleged intoxicating liquors, the said Blaine Carlton was drunk prior to said alleged sale of said liquors. Third, that it is true that on said day of said alleged sale of liquor the said Talley took him to be from his physical appearance over the age of 21 years. Fourth, and it is also admitted to be true that on said day of alleged sales of liquor, and prior thereto, the physical appearance of the said Blaine Carlton indicated that he was over the age of 21 years. The foregoing facts, having been admitted to be true, must be taken as true by you." It is claimed that this charge was upon the weight of the evidence, and also gave undue prominence to the facts admitted, and further that it instructed the jury that the physical appearance of young Carlon indicated that...