Eads v. J & J Sales Corp

• Decision Date: 27 May 1971
• Docket Number: No. 1069A184,No. 1,1069A184,1
• Citation: 269 N.E.2d 888
• Court: Indiana Appellate Court
• Parties: Lee EADS, Sheriff of Marion County, et al., Defendants-Appellants, v. J & J SALES CORPORATION, an Indiana corporation, Plaintiff-Appellee

Page 888

269 N.E.2d 888

Lee EADS, Sheriff of Marion County, et al., Defendants-Appellants, v. J & J SALES CORPORATION, an Indiana corporation, Plaintiff-Appellee.

No. 1069A184.

Appellate Court of Indiana, Division No. 1.

May 27, 1971.

Opinion Superseded 275 N.E.2d 802.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., Mark Peden Deputy Atty. Gen., Indianapolis, for defendants-appellants.

Arthur J. Sullivan, David F. McNamar, Steers, Klee, Jay & Sullivan, Indianapolis, for plaintiff-appellee.

SULLIVAN, Presiding Justice.

In this class action a permanent injunction preventing various law enforcement agencies from seizing appellee's pinball machines, among others, as gambling devices is challenged on appeal as being contrary to the anti-gambling statute of Indiana.

The plaintiff-appellee's complaint stated that the plaintiff was engaged in the business of leasing amusement-type pinball machines; that it derived $15-30 a week from the operation of each machine; that the lessees of the machines received 50% of the weekly receipts of the machines (or approximately $15-30); that the plaintiff's machines were not equipped with any special equipment commonly associated with professional gambling devices; that the plaintiff had leased approximately 350 amusement machines in Indiana, which when new had an average cost of $650 each; and that the threatened confiscation by the defendants had caused return of several machines from lessees thus causing interference with a valuable property right of the plaintiff. The trial court granted the plaintiff a permanent injunction against interference with the machines in question by defendants. The defendants filed a motion for new trial. In that motion the defendants alleged that certain findings of fact were erroneous; that there was an insufficiency of evidence to support the trial court's findings and that the decision of the trial court was contrary to law. The crucial finding of fact here attacked by appellants is as follows:

'9. That the counter or indicator which is located on the upright portion of the machine and which is visible to the player serves no purpose other than a visible counter and merely informs the player as to the number of free plays won or prepaid games or both.'

Appeal is here taken from the overruling of the Motion for New Trial. The appellants have grouped the three errors specified into a single argument: That the pinball machines distributed by the plaintiff-appellee are gambling devices within the letter and spirit of of the 1955 Hasbrook Anti-Gambling Act as found in Ind.Ann.Stat. § 10-2330(4), (Burns' 1970 Supp.), being I.C.1971, 35-25-1-2:

'(4) 'Gambling device' means any mechanism by the operation of which a right to money, credits, deposits or other things of value may be created, in return for a consideration, as the result of the operation of an element of chance; any mechanism which, when operated for a consideration does not return the same value or thing of value for the same consideration upon each operation thereof; any mechanism, furniture, fixture, construction or installation designed primarily for use in connection with professional gambling; and any subassembly or essential part designed or intended for use in connection with any such device, mechanism, furniture, fixture, construction or installation: Provided, That in the application of this definition an immediate and unrecorded right to replay mechanically conferred on players of pinball machines and similar amusement devices shall be presumed to be without value.' (emphasis added)

It is the position of appellants that the visible numbers appearing in a small square on the scoreboard of plaintiff's machines, which refer to free replays and credits due the players, constitute a record by which payoffs can be computed and that said machines are therefore unlawful. In this assertion of illegality they rely upon a statement by the Indiana Supreme Court in Peachey et al. v. Boswell, Mayor et al. (1960), 240 Ind. 604, 167 N.E.2d 48 concerning the intent of the legislature in passing the statute in question:

'The clear intent of the Legislature was to prohibit the use and 'maintaining' of pinball machines which are equipped with recording devices that may be used to compute 'payoffs." 240 Ind. 604, 614, 167 N.E.2d 48, 53. (emphasis supplied)

The impetus to attempt seizure by appellants was, however, provided by a 1968 Opinion of the Attorney General of Indiana:

'It is my opinion that visible meter which automatically records the number of free replays, whether mechanically or electronically conferred, causes a machine to be a 'gambling device.' Such a machine is a 'gambling device' regardless of the existence or nonexistence of an internal meter which further records the cancelled free replays.' 1968 O.A.G. 213 at 215-216.

Appellants thus contend that the free game indicator common to amusement machines is a recording device which can be used to compute a payoff from the lessee to the player, in that it accurately records rights to free replays for which value may be given. Contrariwise, the appellee contends that the visible indicator is one which merely discloses the condition of play at a given moment and is not a device which makes record of a right of free replay.

In giving proper weight to the argument of the appellants and to provide clarity to the meaning of certain essential terms, it is necessary to review the background of the 1955 Hasbrook Anti-Gambling Act. It is also necessary to consider the official comments of the Commission which drafted the prototype from which the Indiana anti-gambling act was drawn.

The first section of the Hasbrook Act proclaimed the public policy to be the protection of the public from the evils of organized and professional gambling as follows:

'It is hereby declared to be the policy of the general assembly, recognizing the close relationship between professional gambling and other organized crime, to restrain all persons from seeking profit from professional gambling activities in this state; to restrain all persons from patronizing such activities when conducted for the profit of any person; to safeguard the public against the evils induced by common gamblers and common gambling houses; and at the same time to preserve the freedom of the press and to avoid restricting participation by individuals in sports and social pastimes which are not for profit, do not affect the public, and do not breach the peace. All the provisions of this act shall be liberally construed to achieve these ends, and administered and enforced with a view to carrying out the above declaration of policy.'

In the Model Anti-Gambling Act drafted by a special committee of the 1952 National Conference of Commissioners on Uniform State Laws, this intent was evidenced in the prefatory note to the model Act:

'The instant draft is designed to strike at the professional (gambler) with every enforcement device which has proved effective in the experience of all the 48 states * * *'

Handbook of the National Conference of Commissioners on Uniform State Laws (1952), p. 210.

Appellants' argument and the nature of the machines here considered must therefore be viewed not in the abstract, but rather in the light of the legislatively declared purpose to prevent the encouragement and spread of professional gambling. According to the appellants' interpretation of the Peachey case, supra, the test of legality is the use to which the metering device may be put rather than strict adherence to a test 'based upon an abstract dictionary definition (of record).'

However, several lethal aneurisms appear in this argument. The first is the difference between an indication and a record. According to Webster's Third New International Dictionary (1961) the verb 'record' means:

'b(1) to make an objective lasting indication of in some mechanical or automatic way: register permanently by mechanical means' (emphasis added)

The verb 'indicate' by contrast means:

'* * * to point out or point to or toward with more or less exactness;

a(1): to show the probable presence or existence or nature or course of: give fair evidence of.'

The noun 'indication' further aids in the delineation of meanings:

'3. The degree indicated in a specific instance of at a specific time on a graduated physical instrument (as a thermometer): READING' (emphasis added)

It should be obvious that a device which 'indicates' is one which reports on the condition, course, or nature of an event or process at a given point in time. In contrast is a device which 'records' or makes a record of an event or process in the form of an 'objective lasting indication' or a 'permanent registration'. It is the permanence of the indication which distinguishes the two terms.

This basic distinction in terms as applied to pinball machines was made clear to the trial court by Mr. Rufus King, draftsman of the Model Anti-Gambling Act adopted nearly verbatim by the Indiana Legislature, as an expert witness for the plaintiff-appellee. In response to the question, 'Mr. King, what would you consider to be a recording device?', he stated:

'* * * (A recording device) * * * (is) any device built into one of these machines which makes a record of free games removed or redeemed, a record which endures beyond the course of the play. (emphasis supplied) The device on the backboard which indicates to the player in the course of the play his playing position * * * the accumulated credits on the bingo machine, (or) the accumulated free games which must be played off on the amusement machine. That (backboard indicator) makes no record because (with both bingo and amusement machines) when the play of that player, the engagement of that player with the machine, is concluded, * * * (the indicated numbers) are reduced to zero (o). This is sort of like a barometer which indicates currently the barometric pressure. A barograph...