Francis v. Mauldin

• Decision Date: 16 September 1949
• Docket Number: 16264.
• Parties: FRANCIS v. MAULDIN et al.
• Court: South Carolina Supreme Court

55 S.E.2d 337

215 S.C. 374

FRANCIS v. MAULDIN et al.

No. 16264.

Supreme Court of South Carolina

September 16, 1949

Hinson, Traxler & Hamer, Greenville, for appellant.

Hingson & Todd, Greenville, for respondent.

FISHBURNE Justice.

This action was brought for the recovery of damages, actual and punitive, for fraud and deceit, based upon allegations in substance as follows: That the defendants, E. E. Mauldin Ruth B. Mauldin, and J. S. Mauldin, executed and delivered to the plaintiff on or about April 8, 1947, for valuable consideration, their promissory note in writing whereby they agreed to pay him the sum of Nineteen Thousand Seven Hundred and No/100 Dollars on demand. Prior to August 15, 1947, the defendants advised the plaintiff that they desired to make a nine thousand dollar payment on the note and requested that the original note be sent to Greenville where they resided, so that credit for this payment when made could be endorsed thereon. The plaintiff, relying upon this representation and promise, sent the original note to Greenville by his agent for this purpose.

When the plaintiff's agent arrived in Greenville, the defendants advised him that they desired to pay the note in full, and to effectuate this the defendant, E. E. Mauldin, executed two postdated checks, one in the sum of $9,000.00, and the other in the sum of $10,700.00. In exchange for these checks, known by the defendants to be worthless, they obtained from plaintiff's agent possession of the original note, all of which was in furtherance of a prearranged fraudulent scheme entered into by the defendants in order to obtain possession of the note. Plaintiff prays judgment against all of the defendants in the sum of $39,400.00.

To the complaint, Ruth B. Mauldin and J. S. Mauldin entered a general denial. The defendant, E. E. Mauldin, answered and counterclaimed for twelve thousand dollars. He denied the execution of the note, and alleged that the indebtedness set forth in the complaint grew out of a gaming transaction in Greenville on or about the 15th day of October, 1946, in which he lost to the plaintiff in a gambling or dice game a sum of money in excess of $31,000.00. He gave plaintiff all the money he had, and one month later, on November 15, 1946, he delivered to the plaintiff his postdated check for $31,000.00. From month to month he made payments thereon until July, 1947, at which time the gambling debt, including interest, had been reduced to $19,700.00. This amount was evidenced by the two postdated checks recited in the complaint. The defendant, Mauldin, also alleged that the plaintiff had at all times since October, 1946, following the gambling transaction, been a resident of the state of Tennessee. He prays judgment against the plaintiff on his counterclaim in the sum of twelve thousand ($12,000.00) dollars.

The plaintiff moved to strike certain allegations from the answer, which was incorporated in the counterclaim; and, reserving his right to insist upon the motion to strike, demurred to the counterclaim on numerous grounds. The motion and demurrer were heard by the trial court and were overruled.

The allegations objected to are 'all the cash he had and gave plaintiff,' and 'whom this defendant is now informed and believes is a large and experienced gambler.' Plaintiff contends that these allegations are irrelevant, and were inserted for prejudicial purposes only.

Generally, the burden of proof that a contract or transaction is a gambling transaction is on the party asserting it. 38 C.J.S., Gaming, § 61, page 117. This burden upon the trial of the case will rest upon the defendant, E. E. Mauldin.

We concur with the view expressed by the trial judge that if the defendant can prove that the plaintiff is a large and experienced gambler, this would tend to show that his version of the transaction is correct. All that is required is that the fact shown legally tends to establish, or to make more or less probable, some matter in issue, and to bear directly or indirectly thereon. Drayton v. Industrial Life & Health Ins. Co., 205 S.C. 98, 31 S.E.2d 148; Entzminger v. Seigler, 186 S.C. 194, 195 S.E. 244.

We are also in accord with the trial court's holding that the allegation that the defendant Mauldin paid to the plaintiff at the time of the gambling loss all the cash he had, is also relevant. It was either a gambling transaction or it was not, and evidence as to this payment of cash would tend to show that money itself was wagered on the dice game, and would tend to prove the gambling transaction.

Plaintiff's main contention, we take it, is, does the counterclaim state a cause of action under Section 6308 of the Code? This ground of appeal brings up for construction the statute referred to, which reads as follows:

'Any person who shall, at any time or sitting, by playing at cards, dice table, or other game or games whatsoever, or by betting on the sides or hands of such as do play at any of the games aforesaid, lose to any one or more person or persons so playing or betting, in the whole, the sum or value of fifty dollars, and shall pay or deliver the same or any part thereof, shall be at liberty, within three months then next ensuing, to sue for and recover the money or goods so lost and paid or delivered, or any part thereof, from the respective winner or winners thereof, with costs of suit, by action, to be prosecuted in any court of competent jurisdiction.'

The following section, 6309, provides that in case the person who shall lose money by playing any of the games mentioned in the quoted section shall not, within the time prescribed, sue for the recovery of his loss, it shall be lawful for any person to sue for and recover such loss, and treble the value thereof, against the winner.

Plaintiff takes the position that it is not alleged in the precise words of the statute (Sec. 6308), nor in words equivalent thereto, that the sum sought to be recovered in the counterclaim was lost 'at any time or sitting.' Hence no cause of action under the statute is stated.

Defendant alleged in his counterclaim 'That on or about the 15th day of October, 1946, this defendant did lose to the plaintiff a sum of money in excess of Thirty One Thousand and No/100 ($31,000.00) Dollars in ' a gambling or dice game taking place in Greenville, South Carolina on said date.' (Emphasis added.)

This remedial statute has given rise to few cases in this state, and none of recent origin. In Trumbo v. Finley, 18 S.C. 305; 51 Am.St.Rep. 414; Ann.Cas.1916E, 94, decided in 1882, which is cited and largely relied upon by the plaintiff, the court interpreted the words 'at any time or sitting,' to mean 'at any one time or sitting.' The action in that case was brought by a stranger or third person under the penal section of the Code (Sec. 6309) to recover from the winner in a faro game, the sum of $75,000.00, being treble the amount won.

The construction referred to above was based upon the following allegation of the complaint: 'That on or about the 24th day of July, 1879, within the limits of the county and state aforesaid, one Bentham R. Caldwell did, by playing at faro,' lose to the defendants the sum of $1,500.00. There were numerous causes of action, and the above allegation related to the first cause of action.

The court in discussing whether or not the phraseology, 'by playing at faro,' came within the purview of the statute (Sec. 6308), held that such allegation did not attempt to state the offense in the words of the statute, nor in equivalent words, hence no cause of action was stated. It was pointed out that the word 'sitting' did not appear in the complaint, nor the words 'any time;' and the court went on to say, 'We do not regard time as important in reference to any particular day within three months, but necessary as to the manner in which the money was won, viz: 'at one time or sitting,' which, as we think, was an important element of the offense under the statute.'

In the Trumbo case, which involved an action under the penal section of the Code, the court gave to the allegation, 'playing at faro,' a rigid construction, and held that this wording did not definitely carry the meaning that the money was won 'at one time or sitting,' but we do not think this holding is controlling in the case before us. In his counterclaim Mauldin does not allege that the money was lost by 'playing at dice,' but lost 'in a gambling or dice game.' In our opinion, this allegation, while not stated in the apt words of the statute, certainly carries the meaning that the defendant's money was lost at one time or sitting. See Zellers v. White, 208 Ill. 518, 70 N.E. 669, 100 Am.St.Rep. 243, and Johnson v. McGregor, 157 Ill. 350, 41 N.E. 558.

It is quite evident that in Trumbo v. Finley, supra, the court recognized the distinction between a remedial action by the loser, and a penal action by a third person, by stating, 'The action being by a stranger, who had no privity with the defendants, for a penalty on account of an alleged legal wrong which did not exist at common law, but only in the statute, we think it was necessary that the precise facts constituting that wrong should be alleged. * * *'

We held in the recent case of McKenzie v. Peoples Baking Co., 205 S.C. 149, 31 S.E.2d 154, that a statute which is both remedial and penal may be given a liberal construction in a civil court when applied remedially, and yet be strictly construed in a criminal court in a prosecution for a violation. Section 6308, upon which the counterclaim is based, is a remedial statute. Section 6309 authorizing treble damages by a third person, is a penal statute. In our opinion, the allegation in the counterclaim is equivalent to saying 'at one time or sitting,' and...