LaFontaine v. Wilson, to Use of Ugast

• Decision Date: 07 February 1946
• Docket Number: 68.
• Parties: LaFONTAINE v. WILSON to Use of UGAST et al.
• Court: Maryland Court of Appeals

45 A.2d 729

185 Md. 673

LaFONTAINE v. WILSON to Use of UGAST et al.

No. 68.

Court of Appeals of Maryland

February 7, 1946

Appeal from Circuit Court, Montgomery County, Charles W. Woodward and Stedman Prescott, Judges.

Action at law by Harry W. Wilson against James A. LaFontaine to recover gambling losses. From a judgment for the plaintiff to the use of Fred H. Ugast, John W. Lyles, and Milton E Groome, copartners, trading as Capital Service Stations, the defendant appeals.

Affirmed.

Wilson K. Barnes, of Baltimore (Carman, Anderson & Barnes, of Baltimore, Robert Peter and F. Barnard Welsh, both of Rockville, on the brief), for appellant.

James W. Gill, of Washington, D. C. (Duckett, Gill & Anderson and Mason. Spalding & McAtee, all of Washington. D. C., on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, GRASON, HENDERSON, and MARKELL, JJ.

HENDERSON Judge.

Harry W. Wilson brought an action at law in the Circuit Court for Prince George's County against James A. LaFontaine Charles Price and the Maryland Athletic Club, to recover gambling losses. The declaration thus stated the alleged cause of action: 'The plaintiff sues the defendants for that on divers days and dates, within three years last past before the filing of this suit, the plaintiff gambled at gaming tables operated by the defendants and lost thereby the sum of $43,886.00.'

The Maryland Athletic Club was never summoned. Demurrers to the declaration interposed by the other defendants were overruled, and these defendants filed general issue pleas and a suggestion of removal. The case was removed to Montgomery County and there tried before a jury. Towards the close of the case, a stipulation was entered into by counsel, wherein it was admitted that LaFontaine declined to answer an interrogatory as to whether he owned and operated the gambling establishment known as 'Jimmy's place' or the 'Maryland Athletic Club', and it was conceded that this amounted to an admission that he did, by virtue of Rule 6 of the General Rules of Practice and Procedure of the Court of Appeals. The suit was then dismissed as to Price. After a demurrer prayer had been refused, the jury returned a verdict in favor of the plaintiff for $30,000, upon which judgment was entered after the trial court refused to disturb it on motion for judgment N. O. V. The judgment was later entered to the use of Ugast, Tyler and Groome, trading as the Capital Service Stations.

The evidence offered by the plaintiff (the defendant having offered none) may be thus summarized: Wilson testified that he worked as bookkeeper and cashier for the Capital Service Stations, and between May, 1942, and November, 1943, lost about $46,000 gambling at 'Jimmy's Place' or the 'Maryland Athletic Club', $44,000 of which he embezzled from his employers. He described in great detail the layout of the gambling establishment, and the methods of play. He generally played dice, occasionally roulette. Money was never used, but only chips purchased from the cashier, who redeemed chips at the close of play. Over objection a number of checks signed by the witness, and endorsed by one Joseph Bovello, and initialed 'M.A.C.', were put in evidence.

Bovello was a doorman or assistant manager of the establishment and cashed the checks for the witness to enable him to buy chips. The checks were offered not to prove the amount of losses, but to corroborate the plaintiff's statement that he gambled in the establishment upon the dates when the checks were cashed.

Wilson testified, over objection, to a conversation with Bovello in September, 1943, in which Bovello suggested that he quit on account of his heavy losses, and said: 'if you went up and talked to Mr. Jimmy, he would tell you the same thing'. Subsequently the trial court struck out this testimony and told the jury to disregard it.

A witness, James A. Hughes, testified, over objection, that he represented Wilson, as attorney, in December, 1943, and negotiated for a settlement with counsel for LaFontaine. The latter handed him a paper on which he had written the names of James A. LaFontaine, Charles Price and Joseph Bovello, and told the witness that any settlement must be predicated upon a release by Wilson of those persons. This paper was offered in evidence, over objection, 'for the purpose of establishing by the mouth of their attorney the people who operate this place and for no other purpose'. The paper and all of Hughes' testimony was subsequently stricken out by the Trial Court, and the jury was instructed to disregard it.

Wilson testified in detail as to the methods he used to keep the books of the Capital Service Stations in apparent balance, by manipulating checks and the cash account. Fred H. Ugast, one of the owners of Capital Service Stations, testified as to Wilson's employment, his duties, and access to the safe. Samuel R. Huey, a public accountant, testified to his discovery of the shortage, Wilson's confession, and his audit establishing the loss to be $44,024, which Wilson verified.

The declaration was based upon section 298 of article 27 of the Maryland Code (1939 ed.), which reads: 'Any person who may lose money at a gaming table may recover back the same as if it were a common debt, and shall be a competent witness to prove the sum he lost; but no person shall recover any money or other thing which he may have won by betting at any game or by betting in any manner whatsoever'. Section 299 of article 27 provides that 'all games, devices and contrivances at which money or any other thing shall be bet or wagered shall be deemed a gaming table within the meaning of sections 288, 289, 290, 296, 297 and 298'.

The appellant contends that the declaration was insufficient, and the proof was likewise insufficient, to comply with the early English Statutes entitled 'An Act against deceitful, disorderly and excessive gaming', 16 Charles 2, ch. 7 (1664), and 'An Act for the better preventing of excessive and deceitful gaming', 9 Anne, ch. 14 (1710). It is contended that these Acts are still in force in Maryland, and that the procedural limitations set forth in these Statutes must be read into the Maryland Statute upon which the plaintiff relies. In England the first of these was repealed by 8 and 9 Vict. ch. 109 (1845) and the second modified by 55 and 56 Vict. ch. 9 (1892) so as to prevent recovery by a loser after payment. For a discussion of these and subsequent English Statutes see Williston, Contracts, Rev.Ed., § 1679 and Pollock, Contracts, 11th Ed., p. 297 et seq.

Wagers were legal at common law (Williston, Contracts, Rev.Ed., § 1667) but by the Statutes of Charles and Anne, certain forms of wagering were made illegal, and recovery by a winner was denied. 2 Alexander's British Statutes, 2d Ed., p. 648. The Statute of Charles provided that the loser 'by any Fraud, Shift, Cousenage, Circumvention, Deceit, or unlawful Device, or ill Practice whatsoever', might recover treble damages, one moiety thereof for the Crown, by suit within 6 months 'next after such play', or suit might be brought by any other person within one year after the six months expired. Another provision denied recovery to any winner in excess of one hundred pounds. The Statute of Anne provided in section 1 that all notes or other securities given for money lost by gaming, or for repaying money knowingly loaned or advanced for gaming or betting, should be void. Section 2 provided that any person 'who shall, at any time or sitting, by playing at Cards, Dice, Tables or other Game or Games whatsoever, or by betting on the Sides or Hands of such as do play', lose 'in the whole, the Sum or Value of ten Pounds, and shall pay or deliver the same', shall be 'at Liberty, within three months then next, to sue for and recover the Money or Goods so lost * * * from the respective Winner or Winners thereof, with Costs of Suit, by Action of Debt Founded on this Act.' If the loser did not sue, any other person could sue for treble damages, one moiety for the suitor, and one moiety for the poor of the parish. Section 3 provided for discovery, section 4, that repayment should acquit of further punishment; section 5, that winning by fraud above ten pounds should be punished as perjury, with recovery of five times the amount won; and section 8 provided penalties and imprisonment for assault on account of money won at play.

There is no doubt that these Statutes were adopted in Maryland, at least in part. Kilty, Report of British Statutes, [1810] p 248. In Hook v. Boteter, 1793, 3 Har. & McH. 348, a loser recovered 120 £ lost at gaming (not deceitful or unfair) at one sitting, which he had paid by orders for goods. The declaration was expressly based on the Statute of Anne. In Gough v. Pratt, 1856, 9 Md. 526, an assignee of a single bill given for money lost at play recovered a judgment and issued execution. The judgment debtor filed a bill for an injunction, and the relief was granted. It was contended that section 1 of the Statute of Anne had been repealed by chapter 84 of the Acts of 1813, which provided that no recovery should be had for money lost or won in gaming; but the court held that there was no inconsistency between the first section of the Statute of Anne, denying recovery on a note or other security given for money lost by gaming, and the Act of 1813 denying recovery to any winner. The court did not pass on the question whether section 2 of the Statute of Anne, governing the rights of a loser, was repealed by the Act of 1813. In Emerson v. Townsend, 73 Md. 224, 20 A. 984, collection of a judgment obtained upon a note given for money loaned for the purpose of gambling was enjoined upon the authority of section 1 of the Statute of Anne. See also Spies v. Rosenstock, 87 Md....