Phillips v. Green

• Decision Date: 21 March 1922
• Citation: 238 S.W. 742,194 Ky. 254
• Parties: PHILLIPS v. GREEN.
• Court: Kentucky Court of Appeals

238 S.W. 742

194 Ky. 254

PHILLIPS v. GREEN.

Court of Appeals of Kentucky.

March 21, 1922

Appeal from Circuit Court, Daviess County.

Suit by Ivory Phillips against Lawson Green. Judgment for defendant and plaintiff appeals. Affirmed.

Tanner W. Jett, of Owensboro, for appellant.

James J. Sweeney, of Owensboro, for appellee.

SAMPSON J.

Appellant Ivory Phillips, instituted this action in the Daviess circuit court against appellee, Lawson Green, to recover $1,001.40 alleged to be the amount of a certain draft and protest fees drawn by the United States National Bank of Owensboro, Ky. in favor of appellee, Lawson Green, on the Hanover National Bank of New York, indorsed in blank by the payee, Lawson Green and transferred and delivered to appellant Phillips for value, on which payment was refused by the drawee bank at the instance and direction of the payee, now appellee, Lawson Green, and the paper protested. Green defended upon the ground that the draft was obtained from him in a game of craps, a game of chance, and without other consideration. A trial resulted in a verdict and judgment for the defendant, now appellee, Green, and Phillips appeals. To reverse the judgment he urges two grounds: (1) Error of the court in overruling his motion made during the progress of the trial to discharge the jury and continue the case because counsel for appellee, after the court had sustained an objection to a question, made an avowal in the presence and hearing of the jury; (2) the verdict of the jury is flagrantly against the evidence.

I. Appellant, Green, called a witness named Poole, by whom he sought to prove the reputation of the house where the soft drink place was kept, and in which Green had testified that the game of craps in which he had lost his money was carried on. This was called Martin's place, and the following question was asked the witness: "Have you played a game in Martin's place recently?" To this question the plaintiff, Phillips, objected, and this objection was sustained by the court. Counsel for appellee then said:

"Avowal.

The Court: What would be your avowal?

Counsel: That it is a gambling house and has always been a gambling place.

The Court: Gentlemen of the jury, you will not consider that."

Whereupon counsel for the plaintiff moved the court to discharge the jury and to continue the case. This motion being overruled, he excepted.

There are two reasons why this objection is not well taken. The first one is that a witness, Dave Poole, had just testified that the soft drink stand was a regular gambling house to which there was no objection. Other evidence, including that of the defendant, Lawson Green, was to the same effect, and there was no objection. The second reason why the plaintiff was not prejudiced by defendant's counsel stating his avowal in the presence and hearing of the jury is that the court immediately admonished the jury not to consider the avowal. Of course, counsel should not have stated his avowal in the hearing of the jury. That was error, but it was not prejudicial under the facts of this case for the two reasons above stated.

II. We do not think the verdict of the jury is flagrantly or at all against the weight of the evidence. The plaintiff testified that he received the $1,000 draft from the defendant, Green in the regular course of business; that is, Green needed some money and desired Phillips to cash the draft, which he did, and gave to Green $1,000 in money. All this took place at the soft drink stand of Martin's in the presence of several persons, some of whom testified concerning the transaction. This house was located in Rockport, Ind. Appellee, Green, who is a farmer, testified that he had just sold his tobacco crop in Owensboro, where he lived, and was passing through Rockport, when he met appellee, Ivory Phillips, on the streets of Rockport, and was taken by him to the second floor of the building where the soft drink stand was kept, and there he met several men in a room, and they all engaged in a game of craps. Green had in his pocket $415 in cash and the draft for $1,000, which he had received for his tobacco crop. The game of craps was played on the floor. They began by shooting for small sums, $5 and $10, and before very long Green had lost all of his $415, and asked a loan from one of the other men in the game, which was granted. Being asked if he could give a check, Green responded that he...