The opinion
CODY, Justice
(dissenting).
I believe that substantial evidence was produced at the hearing before the Administrator to sustain his second finding of fact, that is, “(2) That, on the date in question, one Sam Maceo was an agent and employee, and did ‘then and there possess whiskey on premises directly and indirectly under his control and adjacent to the licensed premises.”
Now the “substantial evidence” of a law violation that will sustain the Administrator in cancelling a beer and wine permit is, of course, more than a mere scintilla ■of evidence. At the same time, I take it that it is less than the preponderance of ■evidence necessary to sustain the verdict of a jury. This abotft places it as not less than such evidence as would require a court in a civil case to submit a plaintiff’s cause to a jury, though it might be less than' sufficient to sustain such verdict against a complaint of being against the preponderance of the evidence.
The evidence in this case shows that the Hollywood Dinner Club and the Turf Athletic Club were in the same building, and ■connected by a passageway, a.nd that those who would enter the premises of the Athletic Club must pass through the premises or dining room of the Hollywood Dinner • Club. The evidence further shows that sometime after Howérton found he could not purchase whiskey in Hollywood Dinner Club, that he went through the passageway connecting it with the Athletic Club, as he saw others doing, and past two men, into the bar room of the Athletic Club. The two men just referred to testified that ■they were employees of the Athletic Club ■and- it was their duty to prevent nonmembers from entering. Howerton found a number of people drinking at the bar, and he purchased a scotch and soda for 60 cents. He then went back to the Hollywood Dinner Club, but about thirty minutes later again returned to the Athletic Club and had the waiter bring him another scotch and soda. He then went from the bar room into the pool room where Sam Maceo was. He and Sam went to the bar room and had a drink together. Sam Maceo told him the place was his. The inspector later returned to the Hollywood Dinner Club through the connecting passageway and left.
Two days later the inspector returned. This time he was stopped by one of the two who testified it was their duty to keep nonmembers out. The inspector was required to give his name, and produce means of identification. He told the men he was not a member of the club, and was told by one of these men he could enter; but the other refused him admittance, saying that his (the inspector’s) name was on a list issued by the management. The inspector then asked for Sam Maceo. When Sam Maceo came, he asked the inspector how he had effected his entrance on the first occasion, and was told that he just walked in with a large crowd. Sam Maceo said that this would cost some employee his job. Sam Maceo then told the inspector he didn’t know if he had a case but that he did believe he was in a position to hurt the establishment. When the waiter brought the inspector’s bill, and was receiving the money in payment for it, Sam Maceo took the money from the waiter and returned it, but the inspector insisted on paying the bill. When the inspector left, Sam Maceo went with him in the inspector’s car. He told the inspector he believed he was in a position to hurt or help him (Sam Maceo) provided he already had a case against the Hollywood Dinner Club, and then tried to hand the inspector money, who said he’d like time to think it over.
It was shown at the tables dn the Hollywood Dinner Club matches were placed with covers on which were printed this advertisement : “Hollywood Dinner Club, Galveston, Texas, Sam Maceo, Managing Director.”
The records of the telephone company reflect that the switchboard at the Hollywood Dinner Club was installed June 8, 1936, the application therefor being signed by Sam Maceo; there being three trunk lines and eight telephones. There was no record of the Athletic Club having telephones at this property.
The original water contract was in the name of the Hollywood Dinner Club, dated June 4, 1926, and there was no record of
*959
the Athletic Club having water connections at this property.
The records of the Gas Company showed the contract with the Hollywood Dinner Club, signed June 21, 1933, was applied for by Sam Maceo, and there was no record of any contract for gas on this property with the Turf Athletic Club.
I think that the fact that the Hollywood Dinner Club was being served by the public service utilities under contracts signed on behalf of the Hollywood Dinner Club by Sam Maceo at the time in question tends to prove that Sam Maceo exercised authority for said Club, >and to raise an issue as to whether he possessed the authority he exercised, in connection therewith.
I think that the authority he exercised in taking the money from the waiter and trying to hand it back to the inspector when the inspector was paying his bill tends to raise the issue whether he in fact had the authority he was exercising.
I think his concern, displayed at the time he learned who the inspector was, as to whether the inspector had a case against the Hollywood Dinner Club, is cumulative of the other evidence.
I think the fact that the match covers which were placed at the tables of Hollywood Dinner Club for the use of customers, and which advertised to such customers that Sam Maceo was the managing director, tended to establish that they were placed there by authority, and that the customers were authorized to believe such representation by the operator of the Dinner Club, is a legitimate inference which the Administrator might draw.
Frank'Maceo did not testify at the hearing. He knew whether or .not Sam Maceo was his agent. He had the right of course not to testify. But if he exercised such right, the natural inference is that he concluded it would serve his interest better not to tell what he knew. It is true that Frank Maceo’s failure to testify is only negative evidence against him, but I do not see how it can be said, in light of the-foregoing evidence, that no weight can be attached to the inference which it authorizes. So much attaches to the failure of an accused to testify that the law will not permit a prosecutor to comment on it. And in civil cases it is well known that the negative evidence, indicated by the failure of a party to a suit to testify where it would be natural for him to testify unless his testimony would be injurious to him, is not without weight, and is usually commented on in argument before the jury.
As it seems to me there was sufficient evidence before the Administrator, in support of second finding of fact, to meet the test as to what is substantial evidence, i.e., enough to make an issue to go to the jury in a civil case, so as to make an instructed verdict there against erroneous, I must respectfully dissent from the majority.