Geis v. Continental Oil Co.
| Decision Date | 22 June 1973 |
| Docket Number | No. 13049,13049 |
| Parties | d 452 Evelyn L. GEIS and Ed Geis, Plaintiffs and Respondents, v. CONTINENTAL OIL COMPANY, Defendant and Appellant. |
| Court | Utah Supreme Court |
John W. Lowe, of Brayton, Lowe & Hurley, Salt Lake City, for defendant and appellant.
Leland S. McCullough, Salt Lake City, for plaintiffs and respondents.
Plaintiffs initiated this action to recover the prize they claimed that they had won according to the rules in a promotional contest sponsored by defendant. The matter was tried before a jury, and a verdict was rendered awarding plaintiffs general damages of $1,000, and punitive damages of $1,500. The trial court ordered in the alternative a new trial or that plaintiffs agree to a reduction in the verdict from $2,500 to $1,000; the plaintiffs elected the latter. Defendant appeals, urging that the trial court erred when it denied defendant's motion for a judgment notwithstanding the verdict on the ground that plaintiffs had not complied with the rules of the contest by submitting legible entry cards.
Defendant had a promotional contest called 'Brand in Orbit.' Defendant's service station dealers distributed to customers small cards upon which there was situated spots covered with paper concealing thereunder printing which became visible when the paper was scraped with a coin. The card was divided into two sections, the winning combination in the upper section provided prizes in amounts of 50cents to $5. The lower portion had one large spot which concealed one word. The object of the contest on the lower portion was to acquire a group of cards which in combination would reveal one of defendant's advertising slogans, such as, 'Brand in Orbit,' prize $2,500; 'Ride the Hot One,' $1,000; 'Hottest Brand Going,' $100; and 'Go With Conoco,' $25.
The contest was open to all licensed drivers; no purchase was necessary; and the game cards were free. Mrs. Geis was interested solely in the prizes to be awarded in the contest on the lower half of the card. Through her own patronage as well as that of her husband and his employees at defendant's service stations, she acquired 522 cards. According to the testimony of Mrs. Geis, she obtained two cards, which, when scraped, the word 'HOT' appeared and then vanished; her husband witnessed this occurrence once. 'HOT' was the control word in the slogan 'Ride the Hot One.' Mrs. Geis took her cards to defendant's agent and claimed the prize of $1,000. Defendant declined to make the award on the ground that the printing was illegible.
During the course of the trial, defendant presented evidence to the effect that there were special markings only discernible under ultra violet light on the control cards, and the two cards submitted by plaintiffs had neither the markings nor the indentations resulting therefrom. Defendant's expert was of the opinion that a sharp instrument had obliterated the printing on the cards urged by plaintiffs to be winners.
The trial court instructed the jury that if it found from a preponderance of the evidence that the two cards in question or either of them had the word 'HOT' in the appropriate place and that plaintiffs had complied with the terms of the contest, they were entitled to recover. Furthermore, if they found that the winning cards were deliberately so devised and constructed that when rubbed in accordance with the instructions the lucky word appeared dimly or illegibly and upon further rubbing disappeared, the jury might award exemplary damages.
On appeal, defendant urges that under the rules of the contest, plaintiffs were not winners. Defendant claims there was no evidence that the cards had been deliberately designed so that the winning words would disappear. Defendant cites authority to the effect that the rights of a contestant in a prize contest are limited by the terms of the offer, and there must be compliance with those terms before a contract is formed. The rules of the contest provided that all game cards are void if illegible, mutilated, forged, tampered with or irregular in any way. Defendant reasons that plaintiffs submitted two cards with the printing obliterated, which did not constitute performance of the act required, submitting legible cards; therefore, plaintiffs did not accept in accordance with defendant's offer, and there was no contract.
There is another aspect of this action, which this court is compelled to consider. An admonition is expressed in 87 A.L.R.2d, Anno: Prize Contests--Rights and Remedies, 649, 652, that the first task facing a contestant seeking to enforce rights allegedly acquired in a prize-winning contest is that of showing that the scheme was legal, for the courts uniformly refuse to lend their aid in the enforcement of an illegal agreement. In other words, since no action can be based on an illegal agreement, no private rights can arise from participating in a prize-winning contest, which is considered illegal, such as a lottery, which has been prohibited by constitutional or legislative provisions. In Blair v. Lowham 1 this court stated that the scheme for the disposition of the automobile in question was plainly a lottery within the statutory definition and was unlawful. Accordingly, this court refused to grant either of the parties relief where they relied solely on a transaction prohibited by law.
Article VI, Section 28, Constitution of Utah, provides:
The Legislature shall not authorize any game of chance, lottery or gift enterprise under any pretense or for any purpose.
Section 76--27--9, U.C.A.1953, provides:
A lottery is any scheme for the disposal or distribution of property by chance among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any scheme or any interest in such property, upon any agreement, understanding or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle or gift enterprise, or by whatever name the same may be known.
Thus, the statutory elements of a lottery are: (1) Prize; (2) change; (3) any valuable consideration. 2
In the instant action the elements of chance and prize are obvious but was there any valuable consideration? This element was discussed extensively in State ex rel. Schillberg v. Safeway Stores, Inc.; 3 this case is of great significance not only because of the similarity of Washington's constitutional and statutory provisions to those of this jurisdiction, but in Blair v. Lowham 4 this court followed the statutory interpretation of the court in State v. Danz. 5 In the Safeway case the issue was whether a game called 'Bonus Bingo' was a lottery or merely an advertising device of a type widely employed in merchandising. As in the instant case, to participate in 'Bonus Bingo' and to have a chance to win a prize, one received the slips and booklets free of charge without the necessity of making a purchase.
The court observed that the Constitution of Washington prohibited any lottery; and, therefore, it would survey closely any scheme or device which appeared even superficially to be a lottery and to apply the constitutional ban to all of them which in fact amounted to a lottery. The court cited State v. Danz and expressed a belief that it was controlling in Bonus Bingo, for as in Danz the fact that prizes were to be won would attract persons to Safeway and to its advertising.
The Washington court explained that the visit to the Safeway Store and a perusal of the promoter's advertising under the Danz rationale amounted to a consideration moving from player to promoter. The players wagered their time, attention, thought, energy and money spent in transportation to the store for a chance to win a prize--all of which constituted a valuable consideration moving from the players to the promoter. 6
It is true that in some jurisdictions, it has been held that a lottery is a special kind of contract, which requires a special kind of consideration, such as money or its equivalent, which will impoverish the individual who parts with it. 7 However, an light of this state's constitutional mandate and legislative enactments pursuant thereto, this court would be engaging in some type of sophistry to hold that there was consideration present to support a bargain but not to provide the element of consideration to constitute a lottery.
Since plaintiffs cannot establish their claim independent of a transaction prohibited by law, the courts cannot grant them relief. The judgment of the trial court is reversed, and this cause is remanded with an order to dismiss the action. No costs are awarded.
There are some persuasive reasons why I cannot agree to the disposition of this case on the ground stated in the main opinion.
The first is that the defense of illegality of the contract was not asserted nor relied on, nor in any manner raised or presented in the district court; nor in any manner...
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