Jones v. Whitney
| Citation | 118 S.W. 1180,136 Mo.App. 683 |
| Parties | JOHN C. JONES, Respondent, v. J. M. WHITNEY et al., Appellants |
| Decision Date | 03 May 1909 |
| Court | Court of Appeals of Kansas |
Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Mytton & Parkinson for appellants.
(1) A reading of the record will disclose that Jones, the plaintiff, entered into a conspiracy with Leach surely, and Sportsman probably, to have them run a fake footrace and thereby defraud defendant, Scott, of his money. (2) The court erred in giving plaintiff instruction number one. (3) The court erred in giving instruction number 2. The original petition filed in this suit did not state a cause of action for the recovery of money lost at gaming but a cause of action to recover money stolen from the plaintiff by the defendants.
Duncan & Utz for respondent.
(1) The application of the rule in pari delicto is not a rule of universal application and will not be applied, when to withhold the relief asked would to a greater extent offend public morals or be an aid to a gang of cheating gamesters to continue their nefarious schemes. Hobbs v Boatright, 195 Mo. 693. (2) In answer to point three of appellant's brief, will say that it seems to us to be wholly without merit. The original petition was filed the day after the footrace in question took place and is in substance same as the amended petition. The cause of action alleged in each is the same. The amended petition eliminated the conclusion near the close of the original "thus fraudulently stealing the amount of $ 720 from plaintiff," which at most was surplusage. There is a good cause of action stated in both the original and amended petition both at common law and under the statute.
The plaintiff sues to recover money wagered on a footrace. On the 23rd day of July, 1908, the plaintiff laid a wager with defendant Scott on the result of a footrace to be made between Ray Leach and A. Sportsman. There were articles of agreement for the race by defendant Scott and by plaintiff under the name of J. Smith, as principals, and A. Sportsman and Ray Leach under the name of Lew Woodruff, as the runners. Altogether, $ 1,840 was wagered as follows: $ 920 by defendant Scott, and $ 920 by plaintiff, $ 200 of which plaintiff obtained from defendant S. Q. Brown, who was the stakeholder. A one hundred yards' distance was measured off and at the report of a pistol the race started. From this time on, there is a great deal of conflict in the evidence.
On the part of plaintiff, the evidence tends to show that, before the race was finished, defendant Scott drew a pistol and when near the finish thrust it in the face of Sportsman, who was in the lead, and threatened to kill him, which caused Sportsman to dodge and fall and in so doing he tripped and threw the other runner; that Scott met Brown some distance back from the place of finish and immediately demanded the money, at the same time threatening and flourishing his pistol; that plaintiff objected to the money being given to him on the ground that there was no decision of the judges as yet and that the race was unfair; that defendant Brown appeared to be intimidated and delivered the money to Scott and all three defendants went away together; that afterwards on the same day the three were arrested while eating their dinner together and taken to the police department of the city of St. Joseph, where, upon being searched, it was found that Scott had upon his person $ 1,094.35, Whitney $ 294.20 and Brown $ 420.05, making a total of $ 1,808.60, or less in amount $ 31.40 than the amount wagered.
The defendants' evidence, on the contrary, is radically different. It tends to show that when the runners had gotten in about ten or twelve feet from the finish Sportsman fell down and then Woodruff, alias Leach began to check his speed, whereupon Scott, who saw what was occurring, drew his pistol and, presenting it in Leach's face, commanded him "to come across the line," which he proceeded to do. And the evidence was also conflicting whether or not the judges had decided the race when plaintiff called the race off and demanded his money. But there was no dispute that all three defendants left...
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