Donovan v. Eastern Racing Ass'n

• Decision Date: 09 June 1949
• Citation: 86 N.E.2d 903,324 Mass. 393
• Parties: JOSEPH E. DONOVAN, JUNIOR, v. EASTERN RACING ASSOCIATION, INC. (and four companion cases (FN1)).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 393

86 N.E.2d 903

JOSEPH E. DONOVAN, JUNIOR, v. EASTERN RACING ASSOCIATION, INC. (and four companion cases (FN1)).

Supreme Judicial Court of Massachusetts.

June 9, 1949

February 9, 10 1949.

Present: QUA, C

J., LUMMUS, RONAN WILKINS, & SPALDING, JJ.

Wager. Racing.

Pleading, Civil Demurrer. "Daily double" betting conducted at licensed horse or dog racing meetings, whereby patrons bet on particular horses or dogs to win both of two successive races, is a part of the pari-mutuel system of betting legalized by G. L. (Ter. Ed.) c. 128A, Section 5, as amended and is not gaming within G. L. (Ter. Ed.) c. 137, Sections 1, 2.

A demurrer to a declaration did not admit the truth of an allegation of law therein that the "daily double" system of betting at horse or dog racing meetings "was not the pari-mutuel system of wagering."

The mere fact that a licensee conducting a horse or dog racing meeting fails to comply with the requirements of G. L. (Ter. Ed.) c. 128A,

Section 5, as amended by St. 1935, c. 454, Section 1, respecting use of "automatic betting machines" and a "totalisator machine" at the betting place at such meeting does not deprive the betting there of its standing as legalized pari-mutuel betting nor make it gaming within G. L. (Ter.

Ed.) c. 137, Sections 1, 2.

FIVE ACTIONS OF TORT. Writs dated June 22, 1948, in the First District Court of Bristol in the action against Taunton Greyhound Association, Inc., and in the Municipal Court of the City of Boston in the other four actions.

Upon removal of the actions to the Superior Court, a demurrer by the defendant in each action was sustained by Hurley, J., who thereupon reported the actions.

----------------------------------------------------------------------------(FN1)The defendant Eastern Racing Association, Inc., conducted running horse racing. The companion cases are similar actions brought by the same plaintiff against the following defendants: Revere Racing Association, Inc., which conducted dog racing; Massasoit Greyhound Association, Inc., which conducted dog racing; Taunton Greyhound Association, Inc., which conducted dog racing; and Bay State Harness Horse Racing and Breeding Association, Inc., which conducted harness horse racing.

J. E. Donovan, Jr., pro se (J.

E. Reilly with him).

Lee M. Friedman, (F. L. Kozol & L. M. Levinson with him,) for Taunton Greyhound Association, Inc.

A. Broadhurst, for Eastern Racing Association, Inc. J. N. Welch, for Revere Racing Association, Inc., and another.

C. M. Goldman, (J.

S. Slater & T.

J. Colbert with him,) for Bay State Harness Horse Racing and Breeding Association, Inc.

LUMMUS, J. These are actions of tort, begun on June 22, 1948, under G. L (Ter. Ed.) c. 137, Sections 1, 2. Section 1 gives to a person who has lost money or goods by playing at cards, dice "or other game," a right to recover such money or the value of such goods in an action of contract. If the loser "does not within three months after such loss. . . prosecute such action with effect, any other person may sue for and recover in tort treble the value thereof." Section 2 provides a similar penalty against the owner, tenant or occupant of a "house or building" where money or goods are lost "in any form of gaming referred to in the preceding section," with the knowledge or consent of said owner, occupant or tenant.

The action given to a third person after three months is penal. Cole v. Groves, 134 Mass. 471 . Cole v. Applebury, 136 Mass. 525 , 530. Yarter v. Flagg, 143 Mass. 280 . It must be commenced within one year. G. L. (Ter. Ed.) c. 260, Section 5. The statute can be traced far back in our provincial history. Cole v. Applebury, 136 Mass. 525 . A bet on a foot race between men (Jones v. Cavanaugh, 149 Mass. 124) or on the physical ability of animals (Grace v. M'Elroy, 1 Allen, 563) is gaming within the statute. Betting on a horse race was held within the statute in Kemp v. Hammond Hotels, 226 Mass. 409, 414.

By St. 1934, c. 374, which by Section 3 inserted in our statutes what is now known as G. L. (Ter. Ed.) c. 128A, a great change was made in the public policy of the Commonwealth with respect to gaming on horse and dog racing. The State racing commission was created, and empowered to license horse and dog racing. By Section 5, as amended by St. 1935, c. 454, Section 1, "Before holding or conducting a racing meeting, every licensee shall provide a place or places, equipped as hereinafter provided, on the grounds where such meeting is held or conducted or adjacent thereto, but not elsewhere, at which such licensee shall conduct and supervise the pari-mutuel or certificate system of wagering on the speed or ability of horses or dogs performing in the races held or conducted by such licensee at such meeting, and such pari-mutuel or certificate method of wagering upon such races so conducted shall not under any circumstances be held or construed to be unlawful, other statutes of the commonwealth to the contrary notwithstanding. Such place or places shall be equipped with automatic betting machines capable of accurate and speedy determination of award or dividend to winning patrons, and all such awards or dividends shall be calculated by a totalisator machine or like machine, except at state or county fairs."

The same Section 5, as amended by St. 1946, c. 575, Section 5, goes on to provide that "Each licensee conducting a racing meeting shall become the custodian or depository for such sums as may be deposited with such licensee by patrons as wagers . . . and such licensee shall be responsible for such sum so deposited and shall return to the winning patrons so wagering . . . all sums so deposited as an award or dividend, according to the acknowledged and recognized rules and method under which such pari-mutuel or certificate system has been operated," less a certain small percentage, part of which is payable to the racing commission to the use of the Commonwealth. A better may recover his winnings from a licensee. Feeney v. Eastern Racing Association, Inc. 303 Mass. 602 . Finlay v. Eastern Racing Association, Inc. 308 Mass. 20 .

In these cases the plaintiff does not allege that he bet or lost money on horse or dog races. He alleges that the several defendants licensees under the statute, operated what was not the pari-mutuel system of betting, but was the combination system of betting, by which patrons bet on the horses or dogs to win in two successive races, and were to lose if in either race the horse or dog selected failed to win. The plaintiff alleges that many patrons, between certain dates in 1947, bet on such "daily doubles" but lost, and failed to sue within three months, whereby the plaintiff became entitled to sue for the statutory penalty. The plaintiff further alleges that the betting was conducted in certain buildings owned or occupied by the several defendants, and that the betting was conducted with...