Parker v. Lowery

• Decision Date: 10 November 1969
• Docket Number: No. 2,No. 54232,54232,2
• Citation: 446 S.W.2d 593
• Parties: Merle Eugene PARKER, Appellant, v. C. W. LOWERY, Bill Butler, and Jerald Fuller, Respondents
• Court: Missouri Supreme Court

Page 593

446 S.W.2d 593

Merle Eugene PARKER, Appellant, v. C. W. LOWERY, Bill Butler, and Jerald Fuller, Respondents.

No. 54232.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1969.

Merle Eugene Parker, in pro. per.

HENRY I. EAGER, Special Commissioner.

Plaintiff has appealed from a judgment dismissing his petition on motion; since the order was not made without prejudice, it constitutes a final judgment. Rule 67.03, V.A.M.R. The sole question is whether the petition states a claim upon which relief can be granted. Appellant has filed a brief pro se; respondents have filed none. We shall refer to appellant as the plaintiff and to respondents as the defendants.

Plaintiff concedes that his suit is unique and without precedent. In essence it is a suit for alleged damage to plaintiff and to the 'moral tone of the community' arising from the operation of a gambling game at a carnival in Ava, Missouri, at the time of the County Fair. More specifically, plaintiff alleges: that his investment in a business and property in Ava gives him a 'greater than average' interest in the welfare and moral tone of the community; that plaintiff learned that defendant Lowery was operating a game of chance and that certain residents had lost money there; that he went to the place on the evening of August 23, 1968, and participated in the game until he lost $29.00 that the game consisted of placing 8 small balls or marbles in a shaker and tossing them into a box which had many shallow holes or depressions in the bottom, with a number on or under each hole; that the operator then added up the numbers which the balls hit, and made certain other computations; that when a certain total was obtained the prize (money or merchandise) was doubled and the cost of a roll also doubled; that plaintiff's cost per roll advanced from 25 cents to $4.00 in 10 minutes and apparently he won nothing; that plaintiff was accompanied by two minors; that, upon his information and belief, defendant Lowery owned and operated the carnival, and that he was a nonresident; that various minors participated in these games of chance and were solicited to do so by defendants; that defendants knew, 'or by exercising reasonable care and diligence, should have known that they were operating a game of chance' in violation of § 563.370, RSMo 1959, V.A.M.S.; that defendants thus 'flouted' the law openly and publicly, set an example for many hundreds of young persons, harmed the 'moral tone of the community' and greatly damaged the plaintiff. For this he prayed $125,000 in general damages and $125,000 as punitive damages. At one point plaintiff alleged that the defendants operated four separate 'games of chance' but only one is described, as above. The defendants other than Lowery were apparently employees. Plaintiff procured a writ of attachment and it was served; defendants then appeared and filed motions,--one to dissolve the attachment and one to dismiss the petition. Both were sustained. Our description of the gaming operation may not be entirely accurate, but this is immaterial to our decision.

Plaintiff does not sue to recover the $29.00 which he says he lost. He alleges nothing else, however, which may be considered as specific damage to him. He says in effect that he has been damaged because the 'moral tone' of the community and of its youth has been damaged by a violation of the criminal law and that this may be measured in 'dollars and cents.' The points in plaintiff's brief, four in number, may all be considered together. Essentially he asserts: that any citizen of a community has a cause of action against one who openly violates the criminal law for profit, when such act or acts are seen or participated in by a substantial number of the people of the community; that every citizen has a responsibility to aid in the 'administration of justice and in the enforcement of the laws'; that the courts should provide an impartial tribunal for hearing evidence thereof, offered by such citizens; and that, in the absence of a prohibitory statute, such an action as this will lie.

The statute to which plaintiff refers, § 563.370, declares it to be a felony for anyone to keep any gambling device and to induce or entice others to play at any such game or device. Plaintiff says that the game which he describes was operated in violation of that statute and we shall assume, for the purposes of this opinion, that it was. The issue therefore is: does such a violation of the criminal law give a civil right of action to a member of the public because, and solely because, of its supposed harmful effect upon the community? We have determined that it does not.

Plaintiff cites no authority even remotely in point. Of course we take as true, as he suggests, all facts well pleaded, with such reasonable inferences as may fairly be drawn therefrom. Hammond v. El Dorado Springs, 362 Mo. 530, 242 S.W.2d 479, 31 A.L.R.2d 1367; Westerhold v. Carroll, Mo., 419 S.W.2d 73. It is possible that the applicability of the theory of 'pari dilecto' might well be considered here since the plaintiff states in his brief that 'participating in any game of chance is a misdemeanor.' However, we prefer to decide the issue on a more substantive ground.

In order for a plaintiff to maintain a civil action he must show a state of facts which, as a matter of law, creates a right in him, an obligation on the defendant, and a default or breach by defendant. 1 Am.Jur.2d, Actions, §§ 1, 2, 46; 1 C.J.S. Actions § 1, p. 936, et seq. And, generally, a civil action is recognized as one for the enforcement or...