State v. Vending Mach. Corp. of America
| Decision Date | 19 November 1935 |
| Docket Number | 22119. |
| Citation | 51 P.2d 724,174 Okla. 603,1935 OK 1138 |
| Parties | STATE v. VENDING MACH. CORPORATION OF AMERICA et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Generally, where statute requires execution of bond for fixed penalty, conditioned on compliance with law, penalty named in bond is measure of damages for its breach or is punishment inflicted for violation of pledge to observe laws, unless statute or bond, read in light of statute, indicates a less or different measure.
2. The bond required by section 1952, O. S. 1931, to be given by cigarette dealers conditioned upon the faithful observance of the provisions of section 1947, O.S. 1931, is a prerequisite to the issuance of a dealers' license which the state demands as a condition to the issuance thereof, and is required as one of the methods of compelling the observance of the law prohibiting the sale of cigarettes to minors.
3. The entire penalty or face amount named in the cigarette dealer's bond required by section 1952, O.S. 1931, may be recovered by the state in a civil action based upon a breach of the condition thereof, without regard to damage actually sustained, or any proof thereof, and without the necessity of a previous conviction of the dealer for the unlawful sale of cigarettes to a minor.
4. Record examined, and held, that plaintiff's evidence is sufficient to show an unlawful sale of cigarettes to a minor by the defendant.
Appeal from County Court, Payne County; L. H. Woodyard, Judge.
Action by the State against the Vending Machine Corporation of America and others to recover on a cigarette dealer's bond. From a judgment for defendants after demurrer to plaintiff's evidence was sustained, plaintiff appeals.
Reversed with directions.
Ernest F. Jenkins, Co. Atty., of Stillwater, for the State.
Monnet & Savage, of Tulsa, and Wilcox & Swank, of Stillwater, for defendants in error.
This is an appeal from the county court of Payne county. The parties here occupy the same relative position which they occupied in the trial court, and will be referred to as plaintiff and defendant.
The action was instituted by the county attorney of Payne county for the purpose of recovering a judgment against the defendant, Vending Machine Corporation of America, a corporation, and Hartford Accident & Indemnity Company, a corporation, based upon an alleged breach of the conditions of a bond given by the Vending Machine Corporation of America, a corporation, as principal, with the Hartford Accident & Indemnity Company, a corporation, as surety, under the provisions of section 1952, O.S. 1931, in the principal sum of $1,000 conditioned upon the faithful compliance with the provisions of section 1947, O.S. 1931, on the part of the principal. The bond was required by the statutes to be given by venders of cigarettes, and is conditioned upon compliance with the law which makes it illegal to furnish to any minor by gift, sale, or otherwise any cigarettes or cigarette papers. The cause was dismissed as to the defendants, except those hereinabove named. Upon trial, the court sustained the defendant's demurrer to plaintiff's evidence, and rendered judgment accordingly. The appeal presents questions of alleged errors of the court in sustaining the demurrer to the evidence.
The evidence discloses that the defendant Vending Machine Corporation of America was engaged in the retail sale of cigarettes by means of a mechanical vending machine so constructed that upon depositing coins in the machine and pulling a lever there would be released to the operator a package of cigarettes. Said defendant had procured a license in Payne county as provided in section 1952, O.S. 1931, and had executed the bond in the principal sum of $1,000, as provided therein, and conditioned in accordance with the statutes, with the surety company defendant as surety thereon. The bond was in full force and effect at the time of the transaction herein discussed, and plaintiff sought judgment for the full amount thereof. One of the machines belonging to the first-named defendant was located in the place of business of Jake Moore, a former defendant in the case, in the town of Yale. The evidence further shows that the county attorney of Payne county had received numerous complaints that the owners, operators, and keepers of cigarette vending machines were dispensing cigarettes to minors in various parts of the county, and sent his assistant, with other persons, to the town of Yale to investigate such complaints. One of the persons employed in this investigation was a small boy fourteen years of age. The investigating party parked their automobile at the front entrance of the place of business of the said Jake Moore, in view of the vending machine owned by the first-named defendant. The minor entered the place of business alone, and was immediately followed therein by a lady who appeared to be in charge of the establishment at the time, and under her instructions and with her assistance the boy deposited coins in the machine and upon operation of the lever as directed secured therefrom a package of cigarettes. Upon inquiry by the lady, the boy answered that his folks did not object to his smoking cigarettes.
It appears from plaintiff's brief that the defendant, in the trial court in support of its argument, on demurrer urged that the plaintiff obtained its evidence by entrapment, and, therefore, would not be permitted to use the same in a trial of this nature. The plaintiff argues this question in its brief in anticipation of the argument being urged on appeal by the defendants. We observe that the question is not urged by the defendants in their brief, and the same, if ever a proper question under the issues here, will be considered as abandoned, and will not be here considered.
Plaintiff's brief, although divided into several parts, is directed generally to the alleged error of the court in sustaining the defendants' demurrer to plaintiff's evidence. It contends that the evidence and the inferences to be reasonably drawn therefrom made out a prima facie case against the defendants.
The defendants in their brief, and in support of the action of the trial court, urges the following propositions:
"First: The amount recoverable on said bond is limited to the actual damages suffered by the state, and plaintiff failed to allege and prove damages.
Second: The evidence disclosed that the cigarettes were sold to Henry W. Hoel, an adult.
Third: Plaintiff failed to prove that the party who sold the cigarettes was an agent of the defendant, Vending Machine Corporation of America."
Our examination of the record convinces us that the trial court erred, unless its action is supported by one or more of the propositions of law urged by the defendants, and we will therefore consider the questions of law in the order above named.
In considering the question whether the amount recoverable on the bond is limited to the actual damage suffered by the state and whether the state must prove damages in order to recover, we first examine the statutory provisions providing for the bond and prescribing the conditions thereof. Section 1977, C.O.S. 1921, which was in force at the time of the transaction here involved, provided as follows: These provisions of law now appear as a part of section 1952, supra.
This law was passed in 1917, and section 1 of the act, which is referred to, is to be found as section 1, chapter 148, S.L. 1917, and appears now as section 1947, O.S. 1931; it provides as follows: "Any person who shall furnish to any minor by gift, sale or otherwise, any cigarettes or cigarette papers, shall be guilty of a misdemeanor and upon conviction thereof, shall be sentenced to pay a fine of not less than twenty-five dollars nor more than two hundred dollars and be confined in the county jail not less than ten days nor more than ninety days for each offense."
In connection with the statutory provisons, the defendants say ...
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