Kroger Co. v. Burleson

• Decision Date: 14 October 1968
• Docket Number: No. 5--4677,5--4677
• Citation: 245 Ark. 371,432 S.W.2d 847
• Parties: The KROGER CO., Appellant, v. Mrs. W. R. BURLESON, Appellee.
• Court: Arkansas Supreme Court

Page 847

432 S.W.2d 847

245 Ark. 371

The KROGER CO., Appellant, v. Mrs. W. R. BURLESON, Appellee.

No. 5--4677.

Supreme Court of Arkansas.

Oct. 14, 1968.

Rehearing Denied Nov. 18, 1968.

Keith, Clegg, & Eckert, Magnolia, for appellant.

McKay, Anderson & Crumpler, Magnolia, for appellee.

BYRD, Justice.

Appellant, The Kroger Company, conducted a promotional game called 'double Sweepstakes Bingo', whereby customers could win prizes ranging from trading stamps to $1,000 cash. The game was played with a card and discs distributed by the Kroger stores to their customers. Kroger's Exhibit #3 is reproduced below to show the card and the discs placed thereon. Concealed discs, such as Burleson's Exhibit #1--A, below, were given to customers each time they visited the store.

Exhibit #3

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Exhibit #1-A

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The game rules are on the back of the cards. Rules 4 and 10 provide:

'4. When you have a row of five squares covered vertically, horizontally or diagonally on any one of the four games on each card, you have won the cash prize indicated at the top of that game. Free squares are the same as covered numbers. Take winning card to our store and have manager verify it. He will then award you the CASH PRIZE. Only one cash prize per game.'

'10. CAUTION: Cards and disc tickets VOID if altered or defaced. Game is VOID where prohibited or restricted by law.'

Appellee, Mrs. W. R. Burleson filled the $1,000 game card allegedly by acquiring the disc 'G--80' in the Magnolia Kroger Store. Mrs. Burleson claims that when she presented the card and discs to the store manager, he told her 'he would send it in and then they'd send me my money'. At that time she signed a form entitled 'Double Sweepstakes Bingo $1,000, $100, $25 _ _ Submission Agreement and Publicity Release Form.'

Mrs. Burleson maintains that she did not leave the store after getting the 'G--80'. Kroger subsequently notified Mrs. Burleson that she was not a winner because the 'G--80' disc had been altered. When Mrs. Burleson's counsel wrote for the return of her bingo card and discs, Kroger responded:

'Dear Mr. Crumpler:

An examination of the key bingo disc submitted by your client makes it obvious that the disc has been tampered with. Aside from any possible fraud implications, our rules state quite clearly that discs which have been altered or defaced are void. Your client clearly does not have a winning disc or card.

For your own information, I might add that your client initialed the disc in question before submitting it to us. The tampering took place before this time. You might also be interested to know that the invisible ink coding which is placed on all winning discs was not on your client's disc.

This is not a case of simple error. It involves a deliberate effort on the part of someone to obtain a prize to which they are not entitled. I understand, of course, that this may have occurred before the disc reached your client for we know these discs are widely traded or sold.

In view of the facts, we do not intend to consider the material submitted by your client as valid.'

At trial the store manager positively identified Kroger's Exhibit #3 as the card and discs given to him by Mrs. Burleson because of his initials on the back of the card and the alteration of the 'G--80'. In a previous deposition he had stated only that it would be his opinion that this was the card submitted by Mrs. Burleson, but that as far as the marks on the card, he was not sure, but they looked like his initials; he would not say they were and he did not remember initialing the discs. He admits he had been instructed by the company to mark the cards and discs for identification so that the person sending them in could be sure it was their card and discs that were sent in, but he failed to have Mrs. Burleson initial her card and disc. The 'G--83' disc on Exhibit #3 were there when submitted, but there was no explanation for its absence. He was not sure why he did not staple the 'G--83' disc as he had done the other two. The 'G--80' was only clipped to prevent mutilation.

The store manager says that it would be a matter of opinion whether Mrs. Burleson thought that he indicated she was a winner. It was his duty to take the card without causing any problems from her and send it to Little Rock.

Byron Crain, Kroger's Advertising Manager for the 36 stores in Arkansas and two in Texarkana, Texas, testified that Kroger used the games so that people would respond to the opportunity to win by shopping at Kroger stores. The cards and discs were designed for 139,000 winners, but only five $1,000 winners. The $1,000 winners were handled individually by him through the use of 'control' numbers or discs--one of which was a 'G--80' disc. The stores receiving the control discs were in Pine Bluff, Little Rock, North Little Rock and Texarkana. A disc numbered 'G--80' was not sent to Magnolia.

Mr. Crain then demonstrated with ultra violet light that the 'G--80' disc on Kroger's Exhibit #3 was not one distributed by Kroger, i.e., it was not coded properly. He speculated that two discs may have been put together by using the eight in 86 and the zero in 40. However, the actual decision to deny the verity of the disc was made on the basis of an alteration under rule #10 of the contest.

On cross examination Crain admitted that Kroger did not mention in its advertising that there could only be five $1,000 winners in Arkansas, and that it continued to advertise $1,000 winners in Magnolia even though no $1,000 control number had been sent to that store.

Another Kroger employee testified that Mrs. Burleson handed him a bingo card with 'G--80' on the manager's day off, Thursday, December 15, before she talked with the store manager on December 19th. He says that he told her to present the card to the manager when he got back. He testified that Mrs. Burleson explained that the 'G--80' disc had been in her wrecked truck.

Mrs. Burleson's complaint alleged fraud and sought damages not only for the...