Doskey v. United Theatres

• Decision Date: 31 December 1942
• Docket Number: 17852.
• Citation: 11 So.2d 276
• Court: Court of Appeal of Louisiana — District of US
• Parties: DOSKEY v. UNITED THEATRES, INC.

11 So.2d 276

DOSKEY v. UNITED THEATRES, INC.

No. 17852.

Court of Appeal of Louisiana, Orleans.

December 31, 1942

On Application for Rehearing Feb. 1, 1943.

Rosen Kammer, Wolff & Hopkins, of New Orleans, for appellant.

H W. & H. M. Robinson, of New Orleans, for appellee.

SIMON, Judge.

This suit was brought by William J. Doskey on behalf of his minor daughter Betty Doskey, against the owner and operator of the National Theatre in New Orleans. The sum of $115 is claimed upon the allegations that the National Theatre, as an incident to its operation, on each Friday night, conducts what is known as "Dividend Night", a system for the distribution of cash awards or "Dividends" to any person, whose registration stub is drawn from a wheel or drum; that on the night of Friday, May 15, 1942, the announced cash award was $115; that on said night a registration stub bearing the name and address of his minor daughter, Betty Doskey, was drawn from the drum; that plaintiff's said minor daughter was present at such drawing, duly presented herself, and that the management of the theatre refused to pay her the said award of $115, assigning as a reason therefor, that his said daughter did not present to the committee in charge of the drawing an original or duplicate registration card bearing the same number as the stub drawn from the drum. Plaintiff further alleges that his minor daughter had lost her original registration card and that she had applied for and had had issued to her a duplicate card.

The defendant answered in which it denied liability on the ground that, on the occasion of the drawing in question, plaintiff's minor daughter had not fulfilled all of the requirements stipulated in the rules and regulations governing these awards, in that she failed to produce an original or duplicate registration card corresponding in number to the registration stub drawn from the wheel. Defendant further avers that upon the failure of plaintiff's minor daughter to have presented a registration card bearing a number corresponding to the number appearing on the winning stub so drawn, the committee in charge of the award refused to pay her the same, and thereupon another number was drawn from the wheel, and the award of $115 was paid, by the defendant, to the person holding said corresponding winning number. Defendant denied that Betty Doskey had applied for a duplicate registration card corresponding to the stub bearing her name and which was originally drawn from the wheel, and averred that, in violation of the rule of said contest, she registered a second time under a different number, which second registration was, under said rules, null and void.

Judgment was rendered in favor of plaintiff and defendant has appealed.

During the argument before us on the merits of the case, we directed the attention of opposing counsel to the right of plaintiff to seek recovery under the circumstances disclosed in this instance, on the theory that, assuming as true, the conditions required and procedure observed in the award made by the defendant to its patrons, such a contract is not enforceable, being in violation of a prohibitive law relative to conducting lotteries. Counsel for defendant, however called our attention to the fact that the defendant had not pleaded, as a matter of defense, the legality, vel non, of the awards made weekly by the defendant to its patrons, nor was that issue being presently urged before us, and that defendant desired to rest its defense exclusively on the merits of the controversy.

Counsel for plaintiff concedes, as he necessarily must, that even in the absence of a formal plea on the part of the defendant raising the issue of the legality, vel non, of the contractual right sued on, we possess the inherent right and power, and it is our duty, to take notice of the nature of the contract here involved, and thus determine at the outset whether it is a gambling contract reprobated by law. Obviously, we are obliged to determine for ourselves, from the evidence adduced, whether the status of the contract falls within or without our prohibitory laws in order to determine whether the question is justiciable.

The record shows that the defendant advertised and operated what is commonly known as "Dividend Night", which was conducted as follows: Each patron paying an admission price to enter the theatre was, in consideration thereof, permitted to register his or her name and address in a registration book furnished by the defendant and its agents. After thus registering, each patron was given a card bearing a number and his or her name and address, and a stub bearing the same number, name and address would be retained by the defendant and dropped into a...