Mattson v. Hollywood Turf Club

• Decision Date: 19 December 1950
• Citation: 101 Cal.App.2d 215,225 P.2d 276
• Court: California Court of Appeals Court of Appeals
• Parties: MATTSON v. HOLLYWOOD TURF CLUB. Civ. 17651.

Page 276

225 P.2d 276

101 Cal.App.2d 215

MATTSON v. HOLLYWOOD TURF CLUB.

Civ. 17651.

District Court of Appeal, Second District, Division 3, California.

Dec. 19, 1950.

Hearing Denied Feb. 15, 1951.

Guthrie, Darling & Shattuck, Los Angeles, for appellant.

Freston & Files, Los Angeles, for respondent.

SHINN, Presiding Justice.

Plaintiff, an industrialist sojourning from Louisville, purchased thirty $100 partimutuel show tickets on a horse running at Hollywood Park, a race course operated by defendant. The horse won, and shortly thereafter the tickets were stolen from plaintiff's pocket. Twenty of them were presented by the thief, or an accomplice, to a cashier, and were cashed; the remaining ten were not cashed. The track eventually paid plaintiff the winnings on the ten tickets that were not cashed upon satisfactory proof made to the California Horse Racing Board, pursuant to section 19598, Business and Professions Code, but refused to pay him for the twenty that had been cashed. Plaintiff sued for the value of these tickets amounting to $4,700, and appeals from an adverse judgment.

The court made several findings adverse to plaintiff, namely: That the tickets were cashed before defendant was notified of the theft, that defendant was not guilty of negligence, and that plaintiff was guilty of contributory negligence. These findings are challenged as without support in the evidence.

The modus operandi of defendant upon the occasion in question was the following: The race was a photo finish between the first and second horses; within a minute after the horses passed the wire the picture of the finish was sent to the judges by the official photographer, showing that plaintiff's horse had won by a head, and the numbers of the winning horses were promptly posted on the board. While the picture was being prepared the horses were returning to the post and the jockeys were being weighed in. When this had been accomplished the race was declared official, and was so announced. The photo finish did not delay the computation of the pay-off for win, place and show, which was computed for both win and place for the first two horses, without waiting for announcement of the winner. Messengers carried pay-off slips to the cashiers at five or six $100 cashiers' windows and upon the flashing of a pay-off light the cashing of tickets began immediately. All this took place in a remarkably short space of time. The holder of the twenty tickets was standing at one of the cashier's windows when the pay-off slips arrived and his tickets were cashed at once. This individual was not identified except as an unnamed 'motion picture extra.' Plaintiff's activities after the race were the following: He took his show tickets, which were encircled with a rubber band, and twenty win tickets on the same horse from his left trousers pocket and placed them in an outside breast pocket of his coat. He had kept a hand upon his tousers pocket, in which he also had some $20,000 in currency, and after the tickets were transferred he kept a hand upon his coat pocket. While thus guarding against the loss of his property he was accosted by a tout with whom he had a slight acquaintance and who had given him a tip on the winning horse. This character expected to be paid for the tip and insisted upon accompanying plaintiff to the cashier's window. Plaintiff did not relish this suggestion, but promised to 'take care of' the tout. The latter, however, was persistent, and plaintiff left his pocket unguarded long enough to shove his annoyer away. Immediately thereafter he discovered that his show tickets were missing. He then went to the sellers' windows where he had purchased his tickets, and where he was known by name. He reported his loss, and a clerk reported it to defendant's Security Police. Plaintiff was then taken by one of the selling clerks to the information window where he made out a claim for the value of the thirty tickets. Security Police came upon the scene and took plaintiff to the office of their superintendent where he was shown a number of photographs. He identified one picture as that of the tout, and was told that this individual had a long criminal record. The police officers testified that plaintiff did not wish to have the tout prosecuted, since he believed his loss was covered by insurance. Plaintiff testified that the officers were disinclined to arrest the tout for the reason they were using him as a 'stool pigeon.' This was denied by the officers. At any rate the tout was not arrested, although the officers contacted him and received from him a description of a man to watch for at the cashiers' windows. The evidence with relation to this incident was indefinite and incomplete. However, defendant's credulous police stationed themselves at the cashiers' windows waiting for the accomplice to walk into their trap. Needless to say, the latter, somewhat more astute, had not waited for all these activities to take place, and was not apprehended. Plaintiff testified that the selling clerks told him payment on the tickets would be stopped. The clerks denied this. Plaintiff also testified that, although he was not known by name to the cashiers, he went to one of their windows and notified a clerk of his loss. There was evidence to the contrary. The distance to be travelled between the particular sellers' windows and the window where the tickets were cashed was estimated...