Shanchell v. Lewis Amusement Co., Inc.

• Decision Date: 14 December 1936
• Docket Number: 16467
• Citation: 171 So. 426
• Court: Court of Appeal of Louisiana — District of US
• Parties: SHANCHELL v. LEWIS AMUSEMENT CO., Inc

171 So. 426

SHANCHELL v. LEWIS AMUSEMENT CO., Inc

No. 16467

Court of Appeal of Louisiana, Orleans.

December 14, 1936

Rehearing denied Jan. 11, 1937. Writ of certiorari refused March 1, 1937.

Seigfried B. Christensen, of New Orleans, for appellant.

Azzo J Plough, of New Orleans, for appellee.

OPINION

WESTERFIELD Judge.

"Plaintiff appeals from a judgment maintaining an exception of no cause of action. The suit is brought by Charles G. Shanchell on behalf of his minor son, Joseph Shanchell, against the Lewis Amusement Company, Inc., the proprietor of a motion picture show. The sum of $ 105 is claimed under the following allegation:

"That defendant owns and operates the Fiorita Theatre, No. 5125 Dauphine Street, this City; that Lewis G. Plough is manager of said theatre operated by the defendant; that defendant did own and operate the before named theatre through the manager, Lewis G. Plough, on March 7, 1936, and previous to that time; that as an inducement to patrons to attend said theatre, defendant did conduct a scheme which defendant advertised and described as "Sweepstakes Nights'; that "Sweepstakes Nights' were conducted as follows: each patron paid an admission price to enter the theatre, and, in consideration thereof, was permitted to register his name in a registration book prepared by defendant and its agents. Further, each patron was allowed to view a motion picture performance for the same admission price. On the registration rolls, each patron was given the name of a horse to identify with his hope of an award. From the registration rolls names were prepared and placed in a turn wheel, from which wheel twenty names were drawn. A cartoon of a horse race between named horses was then run on the motion picture screen. The first three horses pictures in the cartoon who crossed the finish line in order were declared to be the first, second and third award recipients of "Sweepstakes Nights' awards; that the awards offered by the defendant were sums of money; that the awards were made in proportionate amounts to the three patrons whose horses (corresponding to their names on the registration rolls) finished in first, second and third place; that these drawings and cartoon manipulations were periodic, being conducted on Wednesday and Saturday of each week; that as a requisite to being awarded such sums of money, the presence in the theatre of the patron whose name was drawn and whose horse finished in first, second or third place, was imperative under the rules and regulations governing the conduction of such "Sweepstakes Nights'."

The petition further alleges that plaintiff's minor son, a negro, registered his name on November 5, 1935, on the registration rolls, having by this means been induced to purchase an admission ticket in the hope of being awarded a prize; that he attended the theater every Wednesday and Saturday night, on which nights drawings were held to determine the winner of "Bank Night" or "Sweepstakes Night"; (the terms are used interchangeably); that plaintiff's son on February 29, 1936, purchased a ticket of admission and entered the theater, but that on the following "Bank Night," March 1, 1936, when his son attempted to obtain a ticket for the purpose of entering the theater he was denied admission upon the ground that the theater was no longer selling tickets to negroes, "its balcony being in the process of repair to condition the same for white patrons exclusively; that on Wednesday, March 4, 1936, Joseph Shanchell again presented himself and attempted to purchase an admission ticket, but was refused; that on March 7, 1936, Joseph Shanchell presented himself at the theater and further attempted to purchase an admission ticket as he had done on previous occasions, but was refused entrance, being told that the theater was no longer selling negroes admissions or the right to be present in the theater for the "Bank Night" drawings and awards"; and "that on the night of March 7, 1936, when he was so prevented from entering the theatre, his name was drawn from the rolls prepared by the defendant, its manager, and agents; that had defendant permitted said Joseph Shanchell to be present in the theatre in keeping with the contract defendant had originally made with him, said Joseph Shanchell would have been awarded $ 105.00."

It will thus be seen that plaintiff's claim is based upon an alleged contract or, as his counsel terms it, a "continuing contract," which, it is claimed, was breached by the refusal to permit his son to enter the theater on the night when the drawing of the prize, which was a part of the consideration of the contract, occurred. In other words, he is suing for damages for a breach of contract, the damages being equal to the amount of the prize which his son would have won but for defendant's alleged breach of contract.

The exception of no cause of action is based upon the following grounds: First, that the alleged contract sued upon is unenforceable at law, being a gambling contract involving the conduction of a lottery scheme in violation of the laws of this state; and second, that plaintiff's petition fails to allege an obligation known to our laws, since it is not based upon a contract or quasi contract, nor is it a claim ex delicto or quasi ex delicto.

Considering the first ground of the exception, plaintiff's counsel argues that the "continuing contract" sued on is no more than the sale of a hope which is permissible under our laws. He cites articles 1887, 2450, and 2451 of the Revised Civil Code; Slidell v. McCoy's Ex'rs, 15 La. 340, 348, and Losecco v. Gregory, 108 La. 648, 32 So. 985.

Articles 2450 and 2451 of the Revised Civil Code were not taken from the Code Napoleon, it is said, but from Las Siete Partidas, from which counsel quotes the following: "Men can make a purchase or sale of property which does not exist and is not visible. (3)5C Moreover, we decree that a man can purchase property which is not in any way certain. (3)5C We also decree that if the purchaser should say that he is willing to take the chance of the fisherman catching the first time, or catching anything during a certain hour in the day, or during the day, then although he may not catch anything, the purchaser is bound to pay when he promised." Book 5, Title 5, Law XI.

The following is quoted from Slidell v. McCoy's Ex'rs, supra: "A hope or expectation of gain or profit in some enterprize or speculation, may form the object of a contract of sale."

Pretermitting a consideration of the difficulty in comprehending what is meant by a "Continuing contract," we observe that article 1764 of the Revised Civil Code declares that "all things that are...