Perry v. Gross

• Decision Date: 21 February 1889
• Citation: Perry v. Gross, 25 Neb. 826, 41 N. W. 799 (Neb. 1889)
• Parties: PERRY v. GROSS.
• Court: Nebraska Supreme Court

25 Neb. 826

41 N.W. 799

PERRY

v.GROSS.

Supreme Court of Nebraska.

Feb. 21, 1889.

Syllabus by the Court.

1. Section 214 of the Criminal Code, as amended in 1875, made any person who played at any game whatever for money or property, or who made any bet or wager with another, liable for money or property lost by such game, bet, or wager, and a civil action may be maintained against him to recover the same.

2. Instructions set out in the record held properly given, and instruction asked held properly refused.

3. The title to an act to amend section 214 of the Criminal Code, (chapter 58, Gen. St. 1873,) held sufficient to authorize an amendment to the section giving a right of recovery of money or property lost in gambling.

Error to district court, Butler county; POST, Judge.Matt Miller and J. R. Gilkeson, for plaintiff in error.

J. C. Robberts, for defendant in error.

MAXWELL, J.

The defendant in error claims to have lost money by betting on a horse-race, and brought an action against the plaintiff in error to recover the amount of such loss. He alleges in his petition: “That the plaintiff in error (defendant below) is indebted to him in the sum of $375, with interest at 7 per cent. from the 1st day of December, 1884, on account of a certain bet or wager which plaintiff had with defendant on or about the 1st day of October, 1884, for that, on or about the 1st day of October, 1884, this plaintiff and defendant made and entered into a bet or wager upon the result of a horserace, in which transaction this defendant lost the sum of $375; that said bet or wager was had with defendant at or about the time above mentioned, in the state of Nebraska, and the said sum of $375 was lost by this defendant in and upon the said bet or wager which this plaintiff had with said defendant. There is now due on account thereof and thereby from said defendant, Arthur Perry, to this plaintiff, G. G. Gross, the sum of $375, and interest from December 1, 1884, no part of which said sum has been paid, although payment was demanded from and of said defendant by this plaintiff on or about the 1st day of October, 1884, and after the money was lost by this plaintiff, and defendant at the time and ever since has refused, and still refuses, to pay the same.” The answer is, in effect, a general denial. There is a large amount of testimony in the record, and a direct conflict therein. The defendant in error testifies positively that he made a bet of $375 with the plaintiff in error upon the horse-race set out in the petition. This is denied by the plaintiff in error. The testimony is nearly equally balanced, but the weight of testimony seems to sustain the verdict.

In the argument of the cause objections were made to some of the instructions of the court, which instructions, in order to be understood fully, should be considered together. They are as follows: “(1) In this action, the plaintiff, Mr. Gross, sues the defendant, Mr. Perry, and seeks by this action to recover the sum of $375 and interest, which he alleges that he lost in a bet or wager on a certain horse-race in the year 1884.” “(2) The defendant, in his answer, denies all the material allegations in plaintiff's petition. Under the issues thereof in this case the burden of proof is upon the plaintiff; hence, before he can recover in this case, he must produce a preponderance of testimony upon all the material issues.” “(4) All bets and wagers upon horse-races are by law declared to be gambling contracts, and therefore void. By section 214 of our Criminal Code it is provided as follows: ‘If any person shall play at any game whatsoever, for any sum of money or other property of value, or shall make any bet or wager for any sum of money or other property of value, every such person shall be fined in any sum not exceeding $100, or be imprisoned in the county jail not more than three months: provided, further, if any persons shall lose any money or property of any value at any game whatsoever, or on any bet or wager, such person may recover the money or property so lost from the persons playing at such game, or from the person or persons with whom said bet or wager was had.’ (5) You will have observed from the foregoing statement that the questions involved in this case are questions of fact, and that the principal or controlling question is, did the plaintiff make a bet or wager with the defendant, on a horse-race, and did he lose the sum of $375 or any other sum of money on such bet or wager? If you find for the plaintiff upon this issue, you will find a verdict in his favor; otherwise you will find for the defendant. (6) Should you find that the plaintiff made a bet or wager with the defendant, on account of which he lost any sum of money, then it would be entirely immaterial whether such race was fairly conducted or not; nor is it material or proper for you to inquire into the question of who was the winner in the race; nor...