Baedaro v. Caldwell

• Decision Date: 23 January 1953
• Docket Number: No. 33212,33212
• Parties: BAEDARO et al. v. CALDWELL et al.
• Court: Nebraska Supreme Court

Page 706

56 N.W.2d 706

156 Neb. 489

BAEDARO et al. v. CALDWELL et al.

No. 33212.

Supreme Court of Nebraska.

Jan. 23, 1953.

Syllabus by the Court.

1. Article III, section 24, of the Constitution prohibits any game of chance no matter what is given for the play.

2. Within the contemplation of Article III, section 24, of the Constitution and section 28-945, R.R.S.1943, a five-ball pinball machine which gives a player an additional free game or games upon obtaining a high enough score is a game of chance played for money or property and is prohibited in this state.

Edward F. Fogarty and Eugene F. Fitzgerald, Omaha, Clarence S. Beck, Atty. Gen. and Dean G. Kratz, Asst. Atty Gen., for appellants.

White, Lipp & Simon, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

The plaintiff Harry Baedaro brought this action in the district court for Douglas County for the purpose of obtaining a declaratory judgment declaring the five-ball pinball machine installed in his place of business is not a gambling device within the meaning of section 28-945, R.R.S.1943, and for an injunction to prohibit the defendants, who are law enforcing officers, from arresting him, confiscating the pinball machine, or interfering with its operation and use. Trial was had. The district court found that there was a justifiable controversy between the plaintiff and defendants and the case was a proper one for declaratory judgment; denied the plaintiff's prayer for an injunction; found that a coin-operated five-ball pinball machine of the type and character of the machine in question was not adapted, devised, or designed for the purpose of playing any game of chance for money or property or for betting or gambling, and that such machine was not per se a gambling device; and found that the extension of playing time or the giving of additional free game or games achieved by the player by manual operation of the machine in acquiring a predetermined score, where such extension of playing time is not exchanged for money or property, did not constitute money or property and was not in violation of the criminal statutes of Nebraska, and particularly section 28-945, R.R.S.1943. The defendants filed motions for new trial which were overruled. Defendants perfected appeal to this court.

The principal assignments of error predicated by the appellants and determinative of this appeal may be summarized as follows: (1) That the district court erred in declaring the pinball machine in controversy is not per se a gambling device; (2) that the district court erred in declaring the extension of playing time secured by a player by manual operation of the machine in obtaining a predetermined score does not constitute money or property and is not violative of the criminal statutes of this state; and (3) that the judgment of the district court is contrary to the law and the evidence.

The record discloses that the appellee operates a restaurant in the city of Omaha. The five-ball pinball machine in controversy is installed in his place of business. This pinball game may be briefly described as follows: It is a mechanically modified game of bagatelle operated under a combination of mechanical, electrical, and manual devices, and consists of a cabinet about 3 feet high with a sloping surface 2 feet by 4 feet on which are installed a number of scoring holes or receptacles and an arrangement of bumpers and obstacles. The playing surface is encased by a glass- topped cover. There is a spring-operated catapult by the use of which a steel ball or marble is propelled upon the playing surface. At the back of the playing surface is a glass-covered scoring board. Each of the holes, receptacles, bumpers, and obstacles is electrified so that contact with the steel ball registers a score, the amount of the score varying. The object of the game is for the player to cause the steel ball to make contact with as many obstacles as possible, and particularly those which yield the highest score. To play the machine a person inserts a nickel in a coin-receiving device which releases five steel balls or marbles for playing. By means of a manually-operated lever the player causes one ball at a time to be placed in position before the catapult. The player propels the ball by pulling back the spring-powered catapult discharging the ball onto the playing surface. When the player has thus discharged successively each of the five balls onto the playing surface the machine locks and his right to play for the nickel deposited is ended unless the player achieves a predetermined score. In this event the player may continue to play until having failed to achieve the predetermined score. The machine then automatically locks. There are certain other attachments and equipment on the machine which will be referred to and discussed later in the opinion.

It was stipulated that the appellee has paid all taxes of every kind and nature required to be paid by him with reference to the machine. Also, it was stipulated that in the event the machine is used or operated by a player whereby the player may receive an additional free game, or games, by achieving a predetermined score, the defendant law enforcing officers will prosecute the appellee under section 28-945, R.R.S.1943; and that the appellee intends and desires to offer the playing of the game as recreation, amusement, and diversion for his patrons and invitees.

The legality of a five-ball pinball machine of the type and character being considered here has never been determined in Nebraska.

In determining this appeal the following are applicable: The Constitution of Nebraska provides that the Legislature shall not authorize any game of chance, lottery, or gift enterprise. See Art. III, section 24, Constitution.

Section 28-945, R.R.S.1943, provides in part: 'Whoever shall set up or keep any * * * gambling device or gaming machine of any kind or description, under any denomination or name whatsoever, adapted, devised and designed for the purpose of playing any game of chance for money or property * * *' shall be punished as provided for in said section of the statute.

The first question to determine is whether or not the pinball machine involved in this case, as heretofore described, is a game of chance prohibited by the Constitution of the state and condemned by section 28-945, R.R.S.1943.

The appellee contends the machine is designed so that a successful player must use up his right to continuing play, and said right cannot be canceled out by any device but must be exhausted in play. In this connection the machine is not equipped with a knock-off button which is a device that registers the number of games that were won by a player but which were not actually played off. In addition, the machine is equipped with two flippers at the bottom portion of the machine controlled by buttons placed on the side of the machine. The machine contains a tilt device which locks the machine if the player employs too much manual abuse.

Further, the appellee contends, and evidence is introduced to the effect, that a player, by the exercise of manual manipulation and the use of the flipper, is able to control the action of the ball in that it may be deflected, retarded, or repelled toward the scoring objectives as it rolls in gravity toward the lower portion of the playing surface; that the player may influence the course of the ball by shaking or moving the machine; that as the ball leaves the top of the playing surface in its course to the bottom of the playing surface, the player has another opportunity to control the ball and to force it back onto the upper portion of the playing surface by means of the flippers; and that by the use of the flippers, referred to as 'flipper controls,' the ball is caused to score the maximum which the player's skill can accomplish.

Contra, the evidence shows the player is unable to determine from the degree of force applied to the catapult in what direction the ball will roll down the inclined board, is unable to shoot the ball into any lane he chooses, and is unable by the use of the catapult to direct the ball toward the flipper device. When the ball reaches the playing surface it may go in any direction, and cannot be controlled. All five balls may be played at once, completely uncontrolled. The acquiring of a free game, or games, is made in the event the player gets a high enough score, which is determined by the balls, over which the player has very little control, striking certain bumpers and dropping into certain holes. The machine was played in open court by a player qualified as an expert and by a...