Oliver v. Orrick

• Decision Date: 07 December 1926
• Citation: 288 S.W. 966,220 Mo.App. 614
• Parties: CHARLES M. OLIVER, RESPONDENT, v. ALLEN C. ORRICK, ARTHUR J. FREUND, HENRY KORTJOHN, AND FRANK L. MAGOON, APPELLANTS. *
• Court: Missouri Court of Appeals

288 S.W. 966

220 Mo.App. 614

CHARLES M. OLIVER, RESPONDENT, v. ALLEN C. ORRICK, ARTHUR J. FREUND, HENRY KORTJOHN, AND FRANK L. MAGOON, APPELLANTS. *

Court of Appeals of Missouri, St. Louis

December 7, 1926

Appeal from the Circuit Court of the City of St. Louis--Hon. Victor J. Falkenhainer, Judge.

REVERSED AND DEFENDANTS DISCHARGED.

Judgment reversed and defendants discharged.

Jesse W. Barrett and Oliver Senti, First Associate City Counselor for appellants.

(1) The court erred in finding as a matter of fact that the game operated by plaintiff was not a game of chance and the judgment is against the evidence and the weight of the evidence. (a) Plaintiff's evidence clearly proved: (1) that one who had never played the game would have to guess as to the different factors which entered into the force to be used to make the automobile stop at a given point (viz resilience of the rubber bands, weight of the car, etc etc.). (2) That the inventor of the game, although operating it from the time of its inception had not yet become expert and skillful enough to control the automombile in such a way as to make it stop at a given point. (3) That no one ever could by skill cause the automobile to stop at a given point on the board on which it ran if the board was not level. (b) Defendant's evidence proved the board was out of level at the time of the arrest for which the second citation was issued. (2) The court erred in finding as a matter of law that the game operated by plaintiff was not a gambling device. (a) This was a gambling device or game because the test is whether there is an element of chance; and if there is, the presence or inclusion of an element of skill is immaterial. State v. Jackson, 39 Mo. 420; Canton v. Dawson, 71 Mo.App. 235; State v. Flack, 24 Mo. 378; State v. Sutton, 24 Mo. 380; State v. Charlis, 24 Mo. 379. (b) The playing of this game was betting on a gambling device. The player was offered an uncertain chance of getting something for nothing and the fact he would always get something (here a bar of chocalate) does not take the game out of the rule. Moberly v. Deskin, 169 Mo.App. 672; State v. Turlington, 200 Mo.App. 192. (c) Even if the game or device in question by itself had been harmless, the way it was being used constituted gambling. State v. Leaver, 171 Mo.App. 371; State v. Jackson, 39 Mo. 420; Canton v. Dawson, 71 Mo.App. 235; State v. Flack, 24 Mo. 378; State v. Sutton, 24 Mo. 380; State v. Charlis, 24 Mo. 379. (d) The court's language, "I believe that this sort of game ought to be permitted." "These little games of amusement in a measure all require some amount of skill. It looks to me they are harmless amusements and they ought to be permitted. We ought not make a hick town of St. Louis. Now that is how I feel," shows the trial court's mistaken theory as to the law and his conception that if the elememnt of skill entered into the game the game was not a game of chance. (3) The court erred in finding that the defendants violated the terms of the temporary injunction. The temporary injunction enjoined interference with games not gambling devices, thereby expressly excepting those which were gambling devices or used as such. This game was a gambling device and therefore outside of the injunction. State v. Jackson, 39 Mo. 420; Canton v. Dawson, 71 Mo.App. 235; State v. Flack, 24 Mo. 378; State v. Sutton, 24 Mo. 380; State v. Charlis, 24 Mo. 379; Moberly v. Deskin, 169 Mo.App. 672; State v. Turlington, 200 Mo.App. 192; State v. Leaver, 171 Mo.App. 371. (4) The court erred in issuing a temporary injunction. The statutes and ordinances under which the police were acting were penal statutes. To restrain the enforcement of the penal statute is exceptional. Equity furnishes such relief only when the particular cause of action combines, (1) an unconstitutional law; (2) facts that would cause irreparable injury if a prosecution were permitted, and (3) the absence of an adequate remedy at law for the loss. Merchants Exchange v. Knott, 212 Mo. 646; State ex rel. v. Wood, 155 Mo. 445, 449; 5 Pomeroy Equity, sec. 2065; State v. Hall, 250 S.W. 65; Osborn v. Charlevoix, 72 N.W. 962 Kleinke v. Oats, 153 N.W. 675. Here it was not alleged in the petition that any of the laws or ordinances under which the police were acting were unconstitutional, nor was it alleged or proved that plaintiff was without an adequate remedy at law. On the contrary, defendants pleaded their solvency and their ability to pay any judgment recovered. (5) The judgment is against the law. (a) The statute of Missouri and the ordinances of the city of St. Louis make it unlawful to bet on any gambling device. Sec. 3538, R. S. 1919; Secs. 640 and 641, Revised Code of St. Louis, 1914; Canton v. Dawson, 71 Mo.App. 235. (b) It was the particular duty of the police board of the city of St. Louis to suppress gambling. Sections 8967 and 8953, R. S. 1919. (6) Plaintiff's own evidence demonstrated that defendants did not violate the court's injunction, but on the contrary obeyed the laws and ordinances directing them to suppress gambling.

Otto F. Karbe and Albert E. Hausman for respondent.

Foristel, Mudd, Hezel & Habenicht of counsel.

(1) A prosecution for a contempt, although the occasion and immediate cause for it arose in the course of the trial of an action in the court where the contempt proceedings are conducted, is a separate and distinct action and is not dependent upon the action in which the occasion for it arose. The law is so stated in 13 C. J., sec. 80, page 56, to which statement the author collects and cites the full current of American Decision Law, from which we call particular attention to the following cases: First Congregational Church v. Muscatine, 2 Iowa, 69; McDermott v. Clary, 107 Mass. 501; State v. Mathews, 37 N.H. 450; Passmore Williamson case, 26 Pa. St. 9, 19; Hight v. Lucia et al., 36 Wis. 355, 360. (2) From a prosecution and conviction of a direct contempt there is no appeal and the writ of habeas corpus is the only remedy for the prisoner. State ex rel. v. Bland, 189 Mo. 197; In re Ewing and Howell, 273 Mo. 96. (3) Before there may be a commitment for an indirect contempt, there must be a trial conducted according to the course of the common law. Ex parte Nelson, 251 Mo. 63. (4) Except on habeas corpus from a commitment for a direct contempt, the facts found by the court and recited in the judgment of commitment import absolute and conclusive verity. 1 Baily on Jurisdiction, sec. 73, page 265; Church on Habeas Corpus, sec. 340, page 469; Tinsley v. Anderson, 171 U.S. 101, 43 L.Ed. 91; Ex parte Creasy, 243 Mo. 667; Ex parte Heffron, 179 Mo.App. 640; Re Ewing & Howell, 273 Mo. 96; State ex rel. v. Bland, 189 Mo. 197; Ex parte Jack v. Jack, et al., 295 Mo. 128; Ex parte Gounis, 304 Mo. 428; Hartman v. Henry, 280 Mo. 478. (5) Because the defendants did not, at the trial, demur to the evidence or in any manner challenge the sufficiency of the evidence to raise an issue of fact, contempt or no contempt, the point may not be considered here. Crum v. Crum, 231 Mo. 615; Torrence v. Prior, 210 S.W. 430; Marsh v. Davis, 251 S.W. 390; (6) The grounds of the motion for new trial do not allege error for that there was no evidence on the issue, contempt or no contempt. Fitzroy v. Bank, 234 S.W. 865; Phillips v. Dockins, 234 S.W. 1022; Reifeisen v. Young, 183 Mo.App. 508; State v. Scott, 214 Mo. 257. (7) But even if that ground had been properly laid in the motion, it were nevertheless futile, because it is no part of the function of a motion for a new trial to initiate grounds of alleged error competent for review on appeal; but the motion may only assemble and bring forward as errors, rulings to which exceptions have already been duly saved before and during the course of the trial. Reese v. Fife, 279 S.W. 415. (8) The defendants having submitted to the court the issues on the pleadings and the proofs without saving any exceptions and without any challenge of the sufficiency of the evidence by demurrer or otherwise are now estopped here to contend that the verdict and judgment are without the support of evidence. Kenefick v. Ins. Co., 205 Mo. 294; Bradley v. Becker, 296 Mo. 548; Green v. Term, R. R. Ass'n, 211 Mo. 18; Clelland v. Clelland, 291 Mo. 312; Schindler v. Producers Grain Co., 237 S.W. 124; Felty v. Dunlap, 203 S.W. 651; Williams v. Barnes, 215 Mo.App. 354. (9) This court may look at the proceeding in the injunction case, only so far as "to ascertain whether it was coram judice," and inquiry into the merits of the order or decree will not be allowed. 13 C. J., page 80, sec. 116; State v. Horner, 16 Mo.App. 191; Ex parte Jack, supra; Ex parte Gounis, supra; Hartman v. Henry, supra. (10) Historically the process in contempt and the exercise of the power to punish for contempt antedated the establishment of courts of equity or the equity jurisdiction. Ex parte Crenshaw, 80 Mo. 447.

NIPPER, J. Daues, P. J., and Becker, J., concur.

OPINION

NIPPER, J.

The plaintiff in this case is an operator of carnivals in and about the city of St. Louis, and the defendants are members of the Board of Police Commissioners of the city of St. Louis. The defendants were fined for contempt of court, and bring the case here on appeal. A history of the litigation out of which the contempt case arose, and the proceedings leading up to the finding of the defendants guilty of contempt, may be stated as follows:

The plaintiff brought an injunction suit, in which he alleged that he had leased various lots of ground in the city of St Louis, for the purpose of operating carnivals and exhibitions, and had invested thousands of dollars in equipment and apparatus to furnish amusement to his patrons; that he had paid a license for the right and...