Charles Kruger v. Joe Spachek et al., 22 Tex. Civ. App. 307

FISHER, Chief Justice. —This is an action by the appellant against appellee Spachek and the sureties on his liquor dealer’s bond for the penalty alloAved by the statute for selling liqnor to a minor and permitting the minor to remain in the liquor dealer’s place of business. Verdict and judgment in the court beloAAr Avere in favor of the defendants.

Plaintiff’s cause of action, as stated in his petition, is that the appellees violated the statute in selling liquors capable of producing intoxication to his minor son, and in permitting the minor to enter and remain in the place of business where the liquors Avere sold. Pre\*ious to the trial of the case, the defendants propounded interrogatories to the plaintiff and took his depositions and ansAvers thereto, under the statute which authorizes a party, Avithout notice and service of copy of interrogatories, to take the depositions of his adversary.

The depositions Avere taken and returned and filed as a part of the record in the case, but upon the trial were not introduced or offered in evidence by the defendant. The plaintiff at the time being absent and not in attendanee upon the trial, his attorneys offered the depositions in evidence, and upon objection interposed b3r the defendants, the3r were not permitted to be read to the jury. The present statute on this subject is similar to the articles of the statute on the same subject, as stated in Oldham & White’s Digest, which ivere in force at the time that the case of Hadley v.

Upshaw, 27 Texas, 547, was decided. There the Supreme Court held that the party whose depositions were taken under this statute could offer and introduce them in evidence upon the trial of the case, and that this right did not depend upon the fact whether the interrogatories ivere crossed, or whether they had been previously offered in evidence by his adversary. • « In the case of Love v. ICoewne, 58 Texas, 197, it is in effect held that the statute upon this subject supersedes the right to a bill of discovery, as knoAvn to the equity practice.

It is a familiar rule of equity practice that the responsive ansiver of the defendant is eiddence for as ivell as against him. 1 Enc. PI. and Prac., p. 910. The court erred in not permitting these depositions to be read. We think the evidence Avhieh ivas objected to by the appellant, tending to show that he had frequented the saloons and drank Ainth his minor son, was admissible.

Its tendency ivas to establish the fact that he had no objection to his son’s doing the acts that he noiv complains of; and might be considered for Avhat it is Avorth, as tending to establish a tacit consent for him to frequent saloons and for liquor dealers to sell him intoxicating drinks. It may not be entitled to much force as tending to establish his consent to the acts complained of, but it is admissible for what it m^r be Avorth on that subject. The minor testified that his father liad not prohibited him from frequenting saloons.

The court erred in permitting the defendants, upon cross-examination of the witness Heinast, to ask him the question arid require him to answer, if he had been indicted for theft of cattle in Washington Couiriy. Of course this question, and the answer thereto was offered for the purpose of impairing the credibility of the witness. We think the rule laid down in Tipton v. Thompson, 21 Texas Civil Appeals, 143, and Boone v. Wethered, 23 Texas, 675, is opposed to the ruling of the court in admitting this testiniOOT, and ive think error was committed in this respect.

A party who offers a Avitness for the purpose of proving an issue bi’ his testimony has the right to interpose objections to improper questions, the ansAvers to Avhieh might affect the credibility of the Avitness. and thereby impair the iveight to be given to the evidence that he relies upon to sustain his case. It is as much to the interest of a party to protect the credibility of the source from Aldrich his evidence comes from an unauthorizd attack upon it, as it is to insist upon the admission of the evidence from this source, as applicable and relevant to some issue in the case.

We think the objection to the charge as stated in the fourth assignment of error, is well taken. The plaintiff was not confined to the exact day on which the offense was alleged to have been committed. It was error for the court to instruct the jury that the plaintiff could only recover in the event he was aggrieved by the acts complained of. He is of the class of persons mentioned in the statute who are entitled to the remedy upon an infraction of the law. This question has before been gone over by this court in the case of Tipton v.

Thompson, 21 Texas Civil Appeals, 143, and this case, with the authorities there cited, is opposed to the charge of the court complained of. The points contended for in the sixth and eighth assignments of error are not well taken. We do not mean that we regard the evidence sufficient or insufficient to support a finding in favor of the defendants, but we leave the question open to be disposed of upon another trial. We have in effect ruled upon the question raised in the seventh assignment of error. For the reasons stated, the judgment is reversed and the cause remanded. Reversed and remanded.