Desgain v. Wessner
| Decision Date | 26 June 1903 |
| Docket Number | 19,948 |
| Citation | 67 N.E. 991,161 Ind. 205 |
| Parties | Desgain v. Wessner |
| Court | Indiana Supreme Court |
From Blackford Circuit Court; E. C. Vaughn, Judge.
Action by Hector Desgain against Jesse D. Wessner to recover money bet on a wrestling match. From a judgment for defendant on demurrer to complaint, plaintiff appeals.
Reversed.
A. M Waltz and E. W. Secrest, for appellant.
J. A Hindman and M. M. Powell, for appellee.
The question in this case is whether money lost and paid by virtue of a bet or wager on a wrestling match can be recovered under § 6676 Burns 1901. That section is as follows: "If any person by betting on any game, or betting on the hands or sides of such as play at any game, shall lose to any one any money, or valuable thing, and shall pay or deliver the same, or any part thereof, the person so losing and paying, or delivering the same, may, within six months next following, recover the money or other valuable thing so lost and paid or delivered, or any part thereof, with costs of suit, by action founded on this act, to be prosecuted in any court having jurisdiction thereof." We take the following definition of the word "game" from the Century Dictionary: "A contest for success or superiority in a trial of chance, skill, or endurance, or any two or all three of these combined." It was said by Cooley, J., in People v. Weithoff, 51 Mich. 203, 16 N.W. 442, 47 Am. Rep. 557: In 14 Am. & Eng. Ency. Law (2d ed.), 681, it is stated that "Where the statutes prohibit betting on any game, the word 'game' has a broad and comprehensive signification and includes any contest for superiority or success in any trial of chance, skill, endurance, or strength."
The statute in question is not penal, but is remedial in its character, and is, therefore, to be given a liberal construction to advance the remedy. We think, however, that the proposition that a wrestling match is a game within § 6676, supra, is not an open one in this State. In a case that was decided by this court in the year 1846 the court said: "In the statutes and judicial decisions of England, a horse race is uniformly classed as a game (10 Petersdorff's Abr. 228; Blaxton v. Pye, 2 Wils. 309); and we think our legislature used the term in the same signification." Cheesum v. State, 8 Blackf. 332. It was after the above decision that § 6676 of the statutes became a law.
It is not necessary that a statute should have been literally reenacted to authorize the presumption that it was reenacted in the light of the settled judicial construction that the prior enactment had received. The presumption has been indulged in case of a statute that applies a settled procedure to a new subject-matter (Board, etc., v Conner, 155 Ind. 484, 58 N.E. 828); and in Interstate Commerce Commission v. Baltimore, etc., R. Co., 145 U.S. 263, 284, 36 L.Ed. 699, 12 S.Ct. 844, it was held that it should be presumed that congress, by the use of the words "undue preference," had in mind the construction given those words in a statute upon the same subject by the English courts. Caution must, of course, be observed in the application of the general doctrine to cases other than where there has been a literal reenactment of a statute. It is a matter in such an instance which calls for the exercise of a sound judicial discretion to determine, after a...
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