Schnoor v. Griffin
| Decision Date | 22 April 1968 |
| Docket Number | No. 8474,8474 |
| Citation | 439 P.2d 922,79 N.M. 86,1968 NMSC 67 |
| Parties | Robert L. SCHNOOR and Robert McNeece, Plaintiffs-Appellees, v. Gilbert GRIFFIN, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
By statute, pari-mutual betting is authorized under certain conditions. The problem in this case is whether a person, at a place away from the enclosure, can lawfully place a bet through an agent and recover from the agent the amount of the winnings received upon a winning ticket. This appeal is from the trial court's determination that the agent was responsible by reason of breach of contract.
Ruidoso Downs, New Mexico, is a race track where pari-mutuel wagering is licensed. The plaintiffs, at Alamogordo, gave to the defendant $6.00 to take to Ruidoso Downs to bet on what is called the 'Big Q.' This is a combination bet on which horses finish first and second in the eighth and ninth races, respectively. The defendant was instructed how to place the bet, and it was agreed that he would receive ten per cent of any winnings if the bet was successful. The defendant placed the bet and won, the winning tickets paying $4,138.60. The defendant, by having his nephew cash the winning ticket, appropriated the money to himself and refused to turn it over to the plaintiffs.
The trial court found the above facts, and, in addition, made finding No. 10, that the parties, on frequent occasions in the past, had taken bets of other persons to wager at Ruidoso Downs, with the understanding that the person carrying the bet would receive ten per cent of the winnings. The court concluded that the defendant had converted the entire sum less ten per cent, and that there was a valid contract between the parties, which had been breached by the defendant. Judgment was entered in favor of the plaintiffs for $3,724.74 together with interest.
The defendant quarrels with the conclusions and judgment of the trial court, saying that the findings, which they do not attack, established that the contract was illegal and against public policy; that the parties were in pari delicto, the contract of agency being a wagering contract under the common law.
There is no question but that if this was a wagering contract, it is void. Appleton v. Maxwell, 1901, 10 N.M. 748, 65 P. 158. Cf., State v. Schwartz, 1962, 70 N.M. 436, 374 P.2d 418; and compare, Garvin v. Hudson, 1966, 76 N.M. 403, 415 P.2d 369.
The New Mexico statute, with reference to pari-mutuel betting, is as follows (§ 60--6--6, N.M.S.A.1953, 1967 Pocket Supp.):
'* * *
The statute relating to gambling (§ 40A--19--1, N.M.S.A.1953, 1967 Pocket Supp.), insofar as here pertinent, is as follows:
'40A--19--1. Definitions relating to gambling.--As used in Article 19 of the Criminal Code:
'A. 'Bet' means a bargain in which the parties agree that, dependent upon chance, even though accompanied by some skill, one stands to win or lose anything of value specified in the agreement. A bet does not include:
'* * *
'(4) betting otherwise permitted by law;
'* * * 'C. 'Gambling device' means a contrivance which, for a consideration, affords the player an opportunity to obtain anything of value, the award of which is determined by chance, even though accompanied by some skill and whether or not the prize is automatically paid by the device; and
'D. 'Gambling place' means any building or tent, any vehicle, whether self-propelled or not, or any room within any of them, one of whose principal uses is:
'(1) making and settling of bets;
'(2) receiving, holding, recording or forwarding bets or offers to bet;
'* * *'
Sec. 40A--19--2, N.M.S.A.1953, provides that 'Gambling consists of: A. making a bet; * * *.'
We also make reference to § 40A--19--3, N.M.S.A.1953, which, insofar as material, is as follows:
'40A--19--3. Commercial gambling.--Commercial gambling consists of either:
'* * *
'B. receiving, recording or forwarding bets or offers to bet;
'C. possessing facilities with the intent to receive, record or forward bets or offers to bet;
'D. for gain, becoming a custodian of anything of value, bet or offered to be bet;
'* * *'
The question is whether the legislature intended to exempt from the operation of the gambling laws only such pari-mutuel bets as are made by patrons of a racing track where pari-mutuel machines are located, or whether it intended to include in the exemption any and all bets made through the pari-mutuel machines even though initiated outside of the enclosure where the betting machines are located.
The language used by the legislature was not without reason. Certain portions of § 60--6--6, supra, make evident the legislative intent. This is particularly obvious where, in paragraph A, it is stated, 'Within the enclosure' and 'but only within the enclosure where such races are held'; in paragraph B, 'The sale to patrons present on the grounds * * * shall not be construed to be * * * betting, * * * and is authorized under the conditions provided by law' (emphsis added); and in paragraph D, 'Existing statutes * * * against horse racing * * * are not repealed, but are * * * expressly continued in effect, with the exception that the operation of the pari mutuel method, * * * when used as provided by law, is lawful.' It would seem apparent that it was the intention of the legislature to exempt pari-mutuel betting from the general provisions of the gambling laws only when done by patrons who are physically present at the track. It follows from the above that one who is not personally present at the track is not a patron thereof and does not come within the pari-mutuel exemption.
Although the plaintiffs' position that defendant was merely an agent and that there was no illegal act because there was no bet until the wager was made at the pari-mutuel window--which by itself was lawful--has considerable appeal, we are compelled to disagree. On analysis, it is obvious the entire transaction was a mere subterfuge to accomplish a purpose outside the contemplation of the law. The giving of money to defendant and his transporting it to the place of betting are inseparable from the act of placing the bet itself. To sanction such a procedure would permit a mode of gambling not allowed by the pari-mutuel statute. Plaintiffs were neither 'patrons' nor 'within the enclosure.'
We have not been cited to, nor have we found (with one possible exception), any cases which have determined that the type of transaction here involved is other than illegal. New York has often had occasion to rule on this type of problem, and in Stewart v. Department of State, 1940, 174 Misc. 902, 22 N.Y.S.2d 164, aff'd 260 App.Div 979, 23 N.Y.S.2d 226, leave to appeal denial 261 App.Div. 851, 25 N.Y.S.2d 1011, the court said:
'The statute provides that such parimutuel betting on horse races shall be lawful 'if conducted in the manner * * * provided by this act, notwithstanding the provisions of any other law * * * prohibiting or restricting lotteries, pool selling or bookmaking, or any other kind of gambling.' * * * Laws of 1940, chap. 254, § 2 (McK.Unconsol.Laws, § 7562). It is further provided in that section that betting 'shall only be conducted within the grounds or enclosure of a race track' where and when pari-mutuel betting is authorized.
The court, in Stewart, also made the following statement, which is peculiarly applicable to the case before us:
'* * * The regular acceptance of money to be wagered; the transmission of such money to the place of betting; the placing of the bet and the collection of the proceeds all seem to fall within the usual definition of the 'conduct' of a bet.
See, also, People v. Hebert, 1952, 203 Misc. 173, 117 N.Y.S.2d 415. Compare, Holberg v. Westchester Racing Association, 1945, 184 Misc. 581, 53 N.Y.S.2d 490.
We have not overlooked the recent New York case of Cohen v....
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