Oatman v. Davidson

• Decision Date: 30 November 1944
• Docket Number: No. 69.,69.
• Citation: 310 Mich. 57,16 N.W.2d 665
• Parties: OATMAN v. DAVIDSON, Chief of Police (LUCAS, Sheriff, Intervener).
• Court: Michigan Supreme Court

310 Mich. 57

16 N.W.2d 665

OATMAN

v.DAVIDSON, Chief of Police (LUCAS, Sheriff, Intervener).

No. 69.

Supreme Court of Michigan.

Nov. 30, 1944.

Suit by Guy Oatman against Thomas Davidson, Chief of Police of the City of Port Huron, to enjoin defendant from interfering with operation of plaintiff's pinball machines, wherein Ferris K. Lucas, Sheriff of St. Clair County, intervened. From a decree dismissing the bill, plaintiff appeals.

Affirmed.

Before the Entire Bench.

BOYLES, J., NORTH, C. J., and STARR, J., dissenting.

Appeal from Circuit Court, St. Clair County, in Chancery; Xenophon A. Boomhower, Judge.

Benedict & Benedict, of Port Huron, for appellant.

Watson & Inman, of Port Huron, for appellee.

Eugene F. Black, of Port Huron, for intervener and appellee.

REID, Justice.

Plaintiff and appellant filed this bill to enjoin the chief of police of the city of Port Huron from interfering with the operation of plaintiff's pinball machines, and the sheriff of St. Clair county intervened. Plaintiff has about 60 pinball machines in operation in public places in and near Port Huron. The person playing the machine deposits a five cent coin which causes a lever to drop, a ball is propelled up a slight slope and its progress down again is interrupted by pins or bumpers, different lights and gadgets are lighted up and the downward course of the ball, which is entirely by chance or with a slight variation by reason of acquired knowledge and skill on the part of the player, determines whether the player is lucky or has obtained a favorable result in scored points. The skill of the player in any event is a very slight factor in changing the result.

The machine is of the type generally used and well recognized as a gambling device.

Plaintiff claims that his machines are not actually used or put out in various public places for the purpose of returning cash but give only free plays to lucky players. Since these free plays, the testimony shows, would ordinarily cost the player five cents each, the opportunity to have free plays is a thing of value. Players who are lucky may receive as many as 60 free plays, worth $3. It requires about three minutes to make a play. People v. One Pinball Machine, 316 Ill.App. 161, 44 N.E.2d 950, 955.

The fact that the police commissioner and sheriff, appellees, make no proof that cash is actually paid in lieu of the free plays does not alter the character of the machine one iota. It is an apparatus ordinarily used for gambling, a gaming device. There is nothing to stop the proprietor of any establishment where the machine is in operation from turning the luck from free plays to cash as ordinarily occurs in the use of such machines.

Appellant cites Henry v. Kuney, 280 Mich. 188, 273 N.W. 442, and Gibson v. Martin, 308 Mich. 178, 13 N.W.2d 252. It must be noted that in each of those cases it is shown that the successful player has the option of receiving cash, expressly denied in the instant case.

In Henry v. Kuney, supra, 280 Mich. at page 192, 273 N.W. at page 443, the general rule is laid down: ‘Where there is an element of chance in the operation of the slot machine-where the one who plays the machine stands to win or lose money, trade checks, or prizes, by a chance,-the machine is a gambling device.’

There is no difference in principle between a trade check and a free play. In State v. One 5¢ Fifth Inning Base Ball Machine, 241 Ala. 455, 3 So.2d 27, the Alabama Supreme Court construed and applied a statute forbidding gambling devices defined as, ‘Any machine, mechanical device, contrivance, appliance or invention, whatever its name or character, which is operated or can be operated as a game of chance.’ Code 1940, Tit. 14, § 283(d). Though the Court found, 3 So.2d at page 28, ‘There is no proof the machine has been used for gambling, nor that players were offered inducements by way of prizes or other awards,’ the machine was found to be a gambling device, of which the Court further said, ‘By placing a nickel in the slot of this machine several balls are released which are ejected on the board by pulling a plunger and striking against the ball. When the ball strikes the projections or bumpers on the board, a certain score would be made, and by hitting certain bumpers a higher score results than in striking others.’

There are varying decisions as to pinball machines in various states depending in some instances at least on the precise phraseology of the particular statute.

Appellees were justified in treating these machines as apparatus used for gaming or gambling within the meaning of our statute, Section 302, Act No. 328, Pub. Acts 1931.

The decree dismissing the bill is affirmed with costs to appellees.

WIEST, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred with REID, J.

BOYLES, Justice (dissenting).

I do not concur in the result reached by Mr. Justice REID.

The plaintiff has about 60 so-called pinball or bagatelle machines in various places in Port Huron and the adjacent area in St. Clair county. The chief of police of Port Huron ordered them removed and threatened to confiscate them as gambling devices. Plaintiff filed this bill of complaint to enjoin the chief of police from interfering with the operation of the machines. The sheriff of St. Clair county asked for and obtained leave to intervene as a party defendant. The court below denied the relief sought and dismissed the bill. Plaintiff appeals.

The mechanics and methods of operation of so-called pinball machines have been before us recently on two occasions and are set forth in Henry v. Kuney, 280 Mich. 188, 273 N.W. 442, and Gibson v. Martin, 308 Mich. 178, 13 N.W.2d 252. In those cases, as will be pointed out, pinball machines were held to be gambling devices because of the use made of them in their operation. If the machines in the instant case were used as in those cases-as gambling devices-the record fails to show it. According to the record in this case neither the machines nor those who own or operate them give out to the player any coin, token, or anything of value whatever, unless it be the mere opportunity of playing the machine some more, if the total score on the machine is high enough. That, alone, does not establish a gambling device.

There is nothing in the record before us to indicate that these machines have been or were being operated as gambling devices. The only proof in the record is that the machines were operated solely for the amusement of the player. The question before us is: ‘Is a pin-ball or bagatelle machine which is coin operated and which automatically gives the successful player free plays on the machine and nothing else, the number of free plays depending on the score he makes, a gambling device?’

The answer does not depend upon whether the machines be operated for gambling purposes. This is well pointed out in People v. Jennings, 257 N.Y. 196, 177 N.E. 419, where the court said: ‘The district attorney introduced in evidence a circular issued by the manufacturer of this machine, the Mills Novelty Company, of Chicago, Ill., showing how it can be altered and changed so as to be used as a gambling device, that is, one that will emit, with an element of chance, money or things of value by the insertion of a coin and the turn of a handle. The people also introduced expert testimony to show how the particular machine in the possession of the defendant might be thus played if the mechanism were different. Such evidence was entirely incompetent. No changes in the machine had been made while in the possession of the defendant. It...