Boyd v. Piggly Wiggly Southern, Inc., 42683

• Decision Date: 24 April 1967
• Docket Number: No. 1,No. 42683,42683,1
• Citation: 155 S.E.2d 630,115 Ga.App. 628
• Parties: Bernice BOYD v. PIGGLY WIGGLY SOUTHERN, INC
• Court: Georgia Court of Appeals

Page 630

155 S.E.2d 630

115 Ga.App. 628

Bernice BOYD v. PIGGLY WIGGLY SOUTHERN, INC.

No. 42683.

Court of Appeals of Georgia, Division No. 1.

April 24, 1967.

Syllabus by the Court

1. The first burden which must be borne by a litigant seeking to enforce rights allegedly acquired in a sales promotion scheme whereby prizes are awarded by chance is that of showing that the scheme is not illegal and contrary to public policy, for courts will not lend their aid in the settling of disputes grounded in prohibited lotteries or gift enterprises.

2. Three ingredients are necessary to institute a lottery or gift enterprise-prize, chance and consideration.

3. Consideration as an ingredient of a prohibited lottery or gift enterprise is shown when there is present, in the actual working of the sales promotion scheme, a class of persons who, in addition to receiving or being entitled to chances on prizes, supply consideration for all the chances in bulk by purchasing whatever the promoter is selling, whether the purchasers were required to do so or not under the wording of the promoter's rules.

Mrs. Bernice Boyd brought suit against Piggly Wiggly Southern, Inc., seeking to recover $500 which she allegedly won in the ninth week of defendant's 'Pot O'Gold Derby' sales promotion program conducted through its retail grocery supermarkets. Defendant filed an answer and affirmative defense alleging, inter alia, that the Derby tickets entitling the holders to chances on cash prizes delivered to plaintiff and others in connection with the sales promotion program were without consideration; or, in the alternative, if there was consideration for plaintiff's ticket, a lottery and gift enterprise would be established and plaintiff still would not be entitled to recover.

Defendant filed a motion for summary judgment, which was granted. The trial court based its judgment upon sixteen affidavits filed by defendant, the deposition of plaintiff, plaintiff's and defendant's interrogatories to each other and the answers thereto, and the pleadings in the case. From these sources the following facts appear:

On July 28, 1966, the date on which plaintiff allegedly won $500 and for several months prior thereto, the defendant was the promoter and sponsor of a sales promotion program known as 'Piggly Wiggly's (Ga.) Pot O'Gold Derby' which it conducted at its 32 retail grocery stores in south and middle Georgia. Under this sales promotion program the defendant advised its customers and prospective customers through various advertising media as follows:

'Win Up To $500

'Each time you go through the checking lane you will be given one Piggly Wiggly Pot O'Gold Derby Ticket. Each Wednesday, Thursday and Friday turn your television dial to Piggly Wiggly's Pot O'Gold Derby. Watch the races and if your horse is a winner you are a winner.

'There will be 4 races Each Wednesday, Thursday and Friday on TV. If your horse is not in the first race he will be in one of the other races, so be sure to watch all 4 races.

'If you have a 1st place winner, 2nd place winner or 3rd place winner you may win up to $500.

'When your horse wins check with your Piggly Wiggly Southern, Inc. Store Manager for redemption time.

'This is an adult game.

'Store employees and immediate families of employees ineligible.'

Defendant purchased the 'Pot O'Gold' sales promotion package from Tennessee Valley Products Company of Knoxville, Tennessee, and this company prepared, arranged and furnished the materials for the TV programs, including the moving picture films of the horse races which had been run previously on well-known race tracks; the film formats consisting of the names of the races, the horses running, and the winning horses in each race; and the Derby tickets on the horses for distribution at defendant's stores. Defendant contracted with WJBF-TV, Augusta, to take the films and formats furnished by Tennessee, and the advertising and promotional matter which defendant furnished, and prepare video tapes for a thirty-minute program consisting basically of four horse races and the advertising. WJBF-TV retained the original of each tape and sent copies to television stations in Albany and Macon to be televised in those areas, each station showing the same program but on different days of the week.

Under defendant's sales promotion scheme thirteen programs were scheduled, one a week for thirteen weeks. Tickets on horses for each week's program were distributed separately for each week at defendant's stores in the six business days preceding the first showing of the program for that week. Tickets on winning horses were packed separately from the tickets on non-winning horses, and defendant sent the non-winning tickets directly to its various stores in accordance with the volume of business of each store. Winning tickets were turned over to defendant's division supervisors who shuffled them at random among the non-winning tickets in their stores in such a manner that the winning tickets were distributed by chance from the general bundle to patrons as they passed through the checkout counter. Neither the managers of the stores nor other employees were allowed to know the identity of the winning tickets until the programs were shown and the store managers were officially advised by 'verification posters' which were sent out by defendant from its central office by sealed first class mail at the conclusion of each promotion week. Thus none of the store employees, including the actual distributors of the tickets to patrons, had any knowledge as to who received winning tickets until the winning horses for the week were officially announced and the patrons came to the various stores to verify and redeem their winning tickets.

Under the rules and regulations governing defendant's sales promotion program, it was not a condition precedent for an individual to obtain a Derby ticket that he make a purchase of groceries, but it was necessary that he come into a Piggly Wiggly Store and request a ticket. Between June 1, when the sales promotion program began, and July 29, when plaintiff allegedly won $500, a period of approximately two months, plaintiff visited defendant's Piggly Wiggly Store at Sylvania nearly every day, making a purchase and getting a Derby ticket. She won $5.00 in one week's program, which was duly paid by defendant. From July 21 through July 27, the ninth week of the program and the week in question, plaintiff made six trips to the store, purchasing groceries on each occasion; and, as she passed through the checkout counter, she received tickets on six horses to be in that week's races. Although plaintiff knew that she could receive Derby tickets without making purchases, she asserted that she had 'rather purchase something than go for free' and sometimes would buy only a small amount, such as two packs of cigarettes. She had never asked for a ticket without making a purchase, although she knew that some individuals had.

Among the tickets which plaintiff received during the week of July 21-27 (the ninth week) was a ticket on a horse named 'Crimson Satan.' Upon the face of this ticket appeared the following:

'Piggly Wiggly's (Ga.) Pot O'Gold Derby

If Crimson Satan Wins the Race You are a Winner

(This Ticket Good Only For July 27th, 28th and 29th Races)

Wednesday-7:00 P.M.-Channel 10 (Albany)

Thursday-7:00 P.M.-Channel 13 (Macon)

Friday-9:00 A.M.-Channel 6 (Augusta)

(No Purchase Necessary)'

'Crimson Satan' was a participant in the first race of that week's program but not a winner in any race, and 9,100 tickets on this horse, along with tickets on others, had been sent to the various stores for distribution, of which approximately 6,000 were distributed to defendant's patrons in the Albany, Macon and Augusta television areas. The TV stations at Albany and Macon showed the program for the 9th week according to schedule, but the Augusta station, by mistake, on July 29 showed the 11th week's program in which 'Crimson Satan' was the winner of the fourth-race, paying the maximum prize of $500. The Augusta station discovered its mistake, announced it and showed the 9th week's program immediately afterward and additionally made announcements of the mistake throughout the day. The 'verification poster' put up at the Sylvania store was the correct one for the 9th week, and it did not list 'Crimson Satan' as a winner. This litigation followed, and the case reaches this court by plaintiff's appeal from the granting of defendant's motion for summary judgment.

L. H. Hilton, Sylvania, for appellant.

Duncan Graham, William T. Darby, Vidalia, W. Colbert Hawkins, Sylvania, for appellee.

EBERHARDT, Judge.

'The first task facing a contestant seeking to enforce rights allegedly acquired in a prize-winning contest, in a court of law or equity, is that of showing that the contest scheme was legal, for courts uniformly refuse to lend their aid in the enforcement of an illegal agreement.' Annot., Private Rights and Remedies Growing Out of Prize-Winning Contests, 87 A.L.R.2d 649, 652 § 2 (1963). Our courts have uniformly refused to lend their aid in either law or equity to enforce contracts between promoters and participants, or to settle disputes between competing participants, where the contracts or disputes are grounded in lotteries or gift enterprises which are illegal and contrary to public policy. Whitley v. McConnell, 133 Ga. 738, 66 S.E. 933, 27 L.R.A., N.S., 287; Glennville Investment Co. v. Grace, 134 Ga. 572, 68 S.E. 301, 29 L.R.A., N.S., 758; Garland v. Isbell, 139 Ga. 34, 76 S.E. 591; Standridge v. Williford-Burns-Rice Co., 148 Ga. 283, 96 S.E. 498; Bloodworth v. Gay, 213 Ga. 51, 96 S.E.2d 602; Dennis v. Weaver, 103 Ga.App. 824, 121 S.E.2d 190, aff'd 217 Ga. 448, 122 S.E.2d 571.

Our Constitution declares: 'All lotteries, and the sale of lottery tickets, are hereby prohibited; and this prohibition shall be enforced by penal laws.' Constitution of 1945, Art. I, Sec. II,...