Dooley v. Jackson
| Decision Date | 19 January 1904 |
| Parties | DOOLEY, Appellant, v. JACKSON, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Monroe Circuit Court.--Hon. David H. Eby, Judge.
Judgment affirmed.
W. E Whitecotton, G. W. Whitecotton, and E. W. Majors for appellant.
(1) Sections 7082, 7083 and 7127 and other sections of the Revised Statutes of the State of Missouri for 1899, define recognize and authorize the holding of primary elections such as was held in Monroe county. Missouri, on the twenty-ninth day of March 1902. Chapter thirty-two (32), of the said revised statutes, entitled "Gaming," is not only directed against losses at games and by gambling devices, but section 3430 of said chapter declares, "Bets and wagers on any election authorized by the Constitution and laws of this State are gambling within the meaning of this chapter." The intent is as much a part of the law as the letter of the law. State ex rel. v. Kramer, 150 Mo 89; State ex rel. v. Rodecker, 145 Mo. 450; Schawacker v. McLaughlin, 139 Mo. 333; Heman v. McNamara, 77 Mo.App. 1. (2) The fact that this was a bet or wager as stated and that the respondent as a stakeholder had notice while the money was still in his hands as such and yet in transitu, and that he knew it was a bet or wager fixed his liability; and when he turned the money over to Mudd thereafter, he did so at his peril and must respond to this appellant. Vandolah v. McKee, 73 S.W. 233; White v. Gilleland, 93 Mo.App. 310; Weaver v. Harlan, 48 Mo.App. 319; Hickerson v. Benson, 8 Mo. 8. (3) As long as the money remained in Jackson's hands and he had notice from Dooley not to pay over to Mudd, the question of whether or not the event was known or had been determined was not material; and respondent became liable to the appellant when he turned the money over to Mudd, after he had received the notice, irrespective of the fact whether the event at the time of the service of the notice or prior thereto was known or had been determined.
J. H. Whitecotton, Bodine & Reynolds, W. T. Ragland for respondent.
(1) The petition does not state a cause of action within the terms of the statute. If drawn for that purpose it is insufficient. The petition alleges that the bet or wager was on a primary election, "which said primary election was duly authorized by the laws of the State of Missouri." Bets and wagers coming within the terms of the statute are on any election authorized by the Constitution and laws of this State. "In statutory actions of this sort, the party suing must bring himself strictly within the statutory requirements necessary to confer the right, and this must appear in his petition; otherwise it shows no cause of action." Barker v. Railroad, 91 Mo. 86; McNamara v. Slavens, 76 Mo. 329; Dulaney v. Railroad, 21 Mo.App. 597; Sparks v. Railroad, 31 Mo.App. 114; Ryan v. Judy, 7 Mo.App. 14; Connor v. Black, 132 Mo. 50; Sybert v. Jones, 19 Mo. 86; Cutshall v. McGowan, 73 S.W. 933. (2) In the interpretation of the gaming statute we are not at liberty to "hunt for some intention founded on the general policy of the law." The Supreme and other appellate courts of this State have consistently applied what may be termed the rule of strict construction to this and analogous statutory actions. Hickerson v. Benson, 8 Mo. 8; Crawford v. Spencer, 92 Mo. l. c. 507-508. (3) Again, the Supreme Court has laid down another rule for the interpretation of this act, viz: That it is in aid of the criminal law and must be construed in the same way. The gaming statute and the sections of the criminal code denouncing the same transactions are in pari materia. The rule of strict construction has been applied to similar statutes in other states. Commonwealth v. Wells, 17 W. N. C. (Pa.) 164; Commonwealth v. Howe, 144 Mass. 144. (4) Lastly appellant contends that he is entitled to recover in this case under the common law. That the event which was to determine the wager had not happened, and the result was not known at the time he notified respondent stakeholder not to pay over the wager. That the event was not determined until the Democratic central committee officially announced the result of the election, etc. The evidence is undisputed, however, that the results of the primary were unofficially known to the public at large at least two days before appellant made his "demand" of the stakeholder for a return of the wager, or gave him any notice of his intention to repudiate the bet. Humphreys v. McGee, 13 Mo. 435.
The petition, omitting caption, is as follows:
There is no controversy about the facts. Briefly stated they are as follows: Nathan Rogers and Timothy Yates were opposing candidates before the primary election to be held by the Democratic party of Monroe county for nomination to the office of collector for said county to be voted at the election in November, 1902. Dooley, the plaintiff, and H. B. Mudd made a bet on the result of the vote to be cast at the Democratic primary election between Rogers and Yates, and executed the following memorandum of their bet:
They agreed upon the defendant as stakeholder and delivered to him the above memorandum and each put into his hands a stake of five hundred dollars, with the understanding that he should pay the same to the winner of the bet. The county executive committee of the Democratic party of Monroe county had called a primary election to be held in each school district of the county on the twenty-ninth day of March, 1902, for the purpose of nominating candidates of the Democratic party for county officers of Monroe county, including the office of collector, and formulated rules and regulations for holding said primary. On the day designated by the committee the primary election was held and the poll books of the election were returned to the Democratic central committee which had adjourned on March 29th to meet on April 5, 1902. The committee met on April fifth pursuant to adjournment and canvassed the vote cast at the primary election. By the canvass it was shown that Rogers had received six hundred and forty-four votes and Yates seven hundred and twenty-two. It appears that before the canvass was made it was generally known throughout the county that Yates had received more votes than Rogers, and on the third day of April defendant handed over to H. B. Mudd the stake, to-wit, one thousand dollars, which he held as stakeholder. On the previous day (April 2d) plaintiff served on the defendant the following written notice by delivering or causing to be delivered to him copy of the same, to-wit:
To continue reading
Request your trial