Johnson v. Rolls

Citation79 S.W. 513
PartiesJOHNSON v. ROLLS et al.
Decision Date28 March 1904
CourtSupreme Court of Texas

Gregg, Brown & Brooks, for appellant. Baker, Botts, Baker & Lovett, B. H. Gardner, Edgar Watkins, and Frank C. Jones, for appellees.

BROWN, J.

This is a certified question from the Court of Civil Appeals of the First District. The statement and question are as follows:

"The plaintiff in error filed suit in the district court of Anderson county against B. G. Rolls, as principal, and H. Prince and H. Hamilton, as sureties, upon a bond executed by said Rolls as a retail liquor dealer, for the alleged breach thereof, in selling liquor to the minor son of the plaintiff. After the suit had been brought, the defendant Rolls, the principal on the bond, died, and the defendants Prince and Hamilton filed a plea of abatement thereof against them as sureties on said bond, on account of the death of the principal, B. G. Rolls. The plaintiff excepted to the plea, but the trial court overruled the exception and abated the suit, and the plaintiff has brought the cause to this court for revision upon writ of error.

"On account of an apparent conflict of decision upon the question between State v. Schuenemann (Tex. Civ. App.) 46 S. W. 260, and Nolan v. Tennison (Tex. Civ. App.) 50 S. W. 1028, and an expression of the Supreme Court in Peavy v. Goss, 90 Tex. 89, 37 S. W. 317, it is certified for decision as follows: "Did the trial court err in abating the suit against the sureties, Prince and Hamilton, on account of the death of the defendant Rolls, the principal on the bond?"

To the question propounded, we answer, there was no error in abating the suit.

Article 3380, Rev. St. 1895, was embraced in the act of the Legislature of 1887 (Laws 1887, p. 58, c. 79), the title to which reads as follows: "An act to regulate the sale of spirituous, vinous, or malt liquors, or medicated bitters; to fix a tax upon all persons or association of persons selling such liquors; to define the time and manner of collecting such tax; to fix penalties for the violation of this act, and to repeal all laws and parts of laws in conflict with the provisions of this act." The article referred to contains the following provisions: "Any person, etc., desiring to engage in the sale of spirituous, vinous or malt liquors," etc., "shall, before engaging in such occupation, be required to enter into bond in the sum of five thousand dollars, with at least two good, lawful and sufficient sureties, payable to the state of Texas, to be approved by the county judge, conditioned that said person," etc., "will not sell or permit to be sold in his or their house or place of business, nor give nor permit to be given, any spirituous, vinous or malt liquors," etc., "to any person under the age of twenty-one years; which said bond may be sued on at the instance of any person or persons aggrieved by the violation of its provisions, and such person shall be entitled to recover the sum of five hundred dollars as liquidated damages for each infraction of the conditions of such bond." This case does not fall within the terms of any of our statutory provisions for the survival of causes of action, and we must look to the common law for the rule of decision. Watson v. Loop, 12 Tex. 11. If the sum sued for is a penalty, there can be no controversy that at common law the cause of action died with the wrongdoer. Watson v. Loop, above cited. Therefore the question that arises in this case is whether the fact that the Legislature has declared the sum to be recovered upon the bond to be liquidated damages is to govern in determining its...

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31 cases
  • Hofer v. Lavender, C-2552
    • United States
    • Supreme Court of Texas
    • July 11, 1984
    ...... Johnson v. Rolls, 97 Tex. 453, 79 S.W. 513 (1904); Johnson v. Farmer, 89 Tex. 610, 35 S.W. 1062 (1896); and, Watson v. Loop, 12 Tex. 11 (1854). That was ......
  • Ppg Industries v. Jmb/Houston Centers, 01-0346.
    • United States
    • Supreme Court of Texas
    • July 9, 2004
    ...v. Puckett, 288 S.W.2d 122, 124 (Tex.Civ.App.-Fort Worth 1956), aff'd, 156 Tex. 456, 295 S.W.2d 894 (1956); see also Johnson v. Rolls, 97 Tex. 453, 79 S.W. 513, 514 (1904) (noting that at "common law all causes of action for damages die with the person of the party injured, or the person in......
  • State v. Mitchell
    • United States
    • Supreme Court of Texas
    • May 5, 1920
    ...of the general law licensing the retail sale of intoxicating liquors. State v. Eggerman & Co., 81 Tex. 571, 16 S. W. 1067; Johnson v. Rolls, 97 Tex. 453, 79 S. W. 513; Peavy v. Goss, 90 Tex. 89, 37 S. W. 317; State v. Savage, 105 Tex. 467, 151 S. W. 530; State v. Schuenemann, 18 Tex. Civ. A......
  • Belt v. Oppenheimer Blend Harrison & Tate
    • United States
    • Supreme Court of Texas
    • May 5, 2006
    ...inflicting the injury, except such damages as grow out of acts affecting the property rights of the injured party." Johnson v. Rolls, 97 Tex. 453, 79 S.W. 513, 514 (1904); see also Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 34 (Tex.1963) (refusing to depart from long-standing rule that an......
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