Hobbs v. Boatright

• Decision Date: 30 March 1906
• Citation: 93 S.W. 934,195 Mo. 693
• Parties: HOBBS v. BOATRIGHT et al.
• Court: Missouri Supreme Court

93 S.W. 934

195 Mo. 693

HOBBS v. BOATRIGHT et al.

Supreme Court of Missouri, Division No. 1.

March 30, 1906.

1. GAMING—CHEATING—RECOVERY OF MONEY LOST—PARI DELICTO.

Where plaintiff was induced to bet a large sum of money on a foot race on the representation that the result of the race was fixed in advance in favor of the person on whom he betted, when in fact a gang of conspirators had fixed the race against him as one of the series of plots of the same nature, he will be permitted to recover the amount lost, though in the particular transaction he was equally guilty with the conspirator.

2. SAME.

The officers of a bank who, knowing the methods of a gang of conspirators of enticing strangers to bet on races, the results of which were determined in advance, allowed the bank to be used to effect the exchange and transference of money, and to lend an appearance of respectability to the transactions, thereby assisting in the fraud, were liable with the conspirators for the amount of which a stranger was thus defrauded.

3. EVIDENCE—SIMILAR TRANSACTIONS.

In an action against conspirators who induced plaintiff to bet on a race, the result of which was determined in advance, and against the bank and its cashier, who aided the conspirators, where it was shown that checks drawn by the plaintiff and deposited with the bank were forwarded and collected so quickly that plaintiff had no opportunity to stop their payment, evidence of similar transactions both before and after the one in suit was admissible.

4. ACTION — NATURE AND FORM — FRAUD — GAMING.

Where a petition states that the defendants conspired to have fake foot races on which strangers were enticed to bet and the races were so fixed in advance that whichever one of the racers a stranger bet on was sure to lose, that schemes to entice strangers were devised and that plaintiff was caught in one of these schemes so that he lost his money, the action is one at common law for fraud, and not under Rev. St. 1899, § 3424, to recover money lost in gambling.

5. FRAUD—RIGHT OF ACTION — FALSITY OF REPRESENTATIONS—KNOWLEDGE OF PLAINTIFF.

Though an action to recover money bet on a foot race, the result of which was determined in advance, against the conspirators and a bank and its cashier, who aided in the fraudulent scheme, is brought as a common-law action for fraud and deceit, the bank and its cashier are liable with the conspirators, where they assisted in the conspiracy by allowing the use of the bank for the transference of money and to give an appearance of respectability, though their representations that the conspirators were honorable men was known by the plaintiff to be false.

6. BANKS AND BANKING—TORTS—WRONGFUL ACTS OF CASHIER.

Where the cashier of a bank assisted a gang of conspirators in defrauding a stranger by inducing him to bet on a foot race, the result of which was determined in advance, by allowing the use of the bank for the transference of money and to give an appearance of respectability, the bank, as well as the cashier, is liable with the conspirators for the amount of which the stranger was defrauded.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by R. E. Hobbs against Robert Boatright and others. From a judgment in favor of plaintiff, defendants the Exchange Bank of Webb City and another appeal. Affirmed.

A. E. Spencer and W. R. Robertson, for appellants. H. W. Currey and McReynolds & Halliburton, for respondent.

VALLIANT, J.

This is a suit to recover the sum of $6,000, which the plaintiff avers was obtained from him by defendants Boatright and others by means of a fraudulent scheme in which they were aided and abetted by the defendants the Exchange Bank and Stewart its cashier. The evidence shows that the plaintiff was enticed from his home in Oklahoma by the allurement of a scheme in which he was made to believe he would assist his tempters in obtaining money from other persons by means of inducing them to bet on a foot race to come off at Webb City, which race was to be so fraudulently conducted as to make it sure the other persons would lose. Plaintiff yielded to the temptation, went to Webb City, put up his money and lost, and then and there discovered that the supposed victims, in the defrauding of whom he was going to assist, were partners with his tempters in an organizing gang of cheating gamesters; that this gang had been operating in this manner at Webb City for a considerable time, had victimized others in the same way, and that the bank and its officials had knowledge of the conduct of these men, connived at their nefarious schemes and assisted them in it, to the extent at least of allowing the bank to be used to give the appearance of respectability and responsibility to Boatright and the other members of the gang. The trial resulted in a judgment against Boatright and his associates, and also against the bank and its cashier, Stewart, who alone have appealed, and who are presumably the only ones out of whom the amount of the judgment could be realized.

1. The difficult question in the case is, upon which side of this controversy should the law of public policy be applied? Plaintiff schemed with men, as he supposed, to defraud others; his only disappointment was that the men with whom he thought he was scheming had really schemed to defraud him, and they did fleece him to the sum of $6,000. If we should now say to the plaintiff you cannot recover because although you did not accomplish what you intended yet your purpose was to assist those men to defraud others, and, therefore, you are as guilty as any of them, we would by so saying allow the gang and their aiders and abettors to go free, retain the booty and set their traps again. The doctrine that courts will not aid a plaintiff who is in pari delicto with the defendant is not a rule of universal application, it is based on the principle that to give the plaintiff relief in such case would contravene public morals and impair the good of society; therefore the rule should not be applied in a case in which to withhold the relief would to a greater extent offend public morals. To promote the good of the public is the highest aim of the courts in the application of this doctrine. Under the head of exceptions to the rule in 9 Cyc. p. 550, it is said: "Although the parties are in pari delicto, yet the court may interfere and grant relief at the suit of one of them where public policy requires its intervention, even though the result may be that a benefit will be derived by a plaintiff who is in equal guilt with the defendant. But here the guilt of the parties is not considered as equal to the higher right of the public; and the guilty party to whom the relief is granted is simply the instrument by which the public is served." A question of what is public policy in a given case is as broad as a question of what is fraud in a given case, and is addressed to the good common sense of the court. In that view of the question it becomes proper for us to state a little more fully than we have above stated the facts which the evidence in this case discloses.

For several years prior to the date of the plaintiff's troubles there existed an organization in Webb City calling itself the Webb City Athletic Club and professing to be composed of the wealthy miners and other responsible business men in that vicinity who were fond of athletic sports and desired to give encouragement to such in a high-minded way. That is what they said of themselves; in the community, however, they were generally called the "Buckfoot gang," and were understood as being engaged in promoting foot races, in which they arranged with the racers in advance of the race which one was to win. The reputation of the gang was such that bettors on the races could be obtained only from outside of that community, and in order to allure victims into their net emissaries were sent out who told seductive stories that appealed strongly to men to whom the hope of obtaining a dishonest gain with seeming immunity from punishment was a temptation. Two of these emissaries, Wasser and Fisher, found the plaintiff in his home in Oklahoma and told him their story, which in effect was that Wasser had been running races for this athletic club, had won many races and much money for the club, but had not been treated fairly by them,—had not been given his fair proposition of the money won; that it was arranged between him and Fisher that they would be the competing champions in a race to be run; the clubmen would, as usual, bet on Wasser, their favorite, and he would allow Fisher to beat him, and thus Wasser, who was a poor boy and had a father to take care of, would be enabled to get back from the unjust members of the club money that he had really earned but which had been so unjustly withheld from him; that Mr. Boatright, who was the president of the club, knew of the scheme and would secretly aid them in accomplishing its purpose, but that he would have to act secretly, lest the members of the club and the betting public would suspect something, therefore it was necessary to have an entire stranger who would be the ostensible bettor on Fisher. In the beginning the proposition contained no suggestion that the plaintiff would put up any money of his own on the race, but he was asked to bet only the money that would be given him by Boatright after he got to Webb City. Nevertheless it was adroitly suggested that it would give a much better air to the whole project if the plaintiff would carry with him a letter of credit from the bank at his home town to exhibit to a bank in Webb City and thus show that he was a man of substance at home. According to the testimony given by the plaintiff himself, he was not promised any share of the money to be won but went into the scheme for pure benevolence for poor Wasser, whom, however, he had never seen before. Plaintiff's testimony would have been more candid if h...