State ex rel. Dussault v. Kilburn

• Decision Date: 05 February 1941
• Docket Number: 8089.
• Citation: 109 P.2d 1113,111 Mont. 400
• Parties: STATE ex rel. DUSSAULT, Co. Atty., et al. v. KILBURN.
• Court: Montana Supreme Court

109 P.2d 1113

111 Mont. 400

STATE ex rel. DUSSAULT, Co. Atty., et al. v. KILBURN.

No. 8089.

Supreme Court of Montana

February 5, 1941

Appeal from District Court, Fourth District, Missoula County; J. E Rockwood, Judge.

Proceeding by the State, on the relation of Edward T. Dussault, County Attorney, and others, against Ralph Kilburn, doing business under the ficititious name and style of the Palace Bar, and others, to enjoin the maintenance of a nuisance on certain described premises. From a judgment for the plaintiff defendants appeal.

Affirmed.

W. E Keeley and James B. Castles, both of Deer Lodge, for appellants.

E. T Dussault and Randolph Jacobs, both of Missoula, for respondents.

ANGSTMAN Justice.

This proceeding is in equity to enjoin the defendants from maintaining a nuisance on certain described premises in the city of Missoula more particularly designated as a gambling device known as pinball. The cause was tried to the Honorable J. E. Rockwood, Judge of the Eleventh Judicial District, sitting without a jury. Judgment went for plaintiff and defendants appealed. Defendant Kilburn was the owner of the business which operated the pinball machine, and the other defendants are those who placed the machine in the building.

The use of the pinball machine by the defendant Kilburn and its installation by the other defendants was conceded. The issue for determination is whether the court was correct in holding that the machine is a gambling device within the meaning of our gambling statutes, or whether, as contended by defendants, it is a legitimate trade stimulator made available for the entertainment and amusement of patrons of Kilburn and an instrument used as a game of skill and not as a game of chance.

Admissions in the pleadings and undisputed evidence disclose that the description and operation of the machine are substantially the following: It consists of a cabinet or stand about three and one-half or four feet high with a sloping plane or surface studded with small steel pins and containing holes. It has a catapult by the use of which a marble or ball is shot onto the plane with the object of having the ball enter one of the paying holes. To play the game a person places a nickel or a trade check in a slot in the machine. This places the marble or ball in a position for playing. The trade checks are redeemable in merchandise at the rate of 5 cents or more for each trade check as stamped on each at Kilburn's place of business, and not elsewhere. The machine is so constructed that the pay-off is in trade checks only and not in money. The number of checks received in the pay-off varies according to the hole in which the marble or ball falls. If the player is not successful in getting the marble into one of the proper holes, he receives nothing on the play. The marble or ball is shot from a spring or mechanical device. The power with which the ball is shot depends upon how far back the spring is pulled and, hence, is subject to the control of the player.

In explaining one phase of the operation of the machine defendant Staninger testified: "The board, in turn, has holes with numbers below the holes corresponding with the numbers that may be lighted on the back board; the lights naturally are operated from electrical spinners; the spinners turn and stop on certain switches that turn on certain lights on the back board; then the player must shoot the ball into a hole that corresponds with the light that is lit. The machine also has an electrical and mechanical pay-out mechanism that pays out trade checks, hickeys, etc. Well, after the coin is inserted in the slot that starts the machine in operation why there is a spinner or electrical disk, a disk with electrical fingers, or brass fingers, that turn on from an electrical motor, we might say a vibrator, and these fingers, in turn, stop on certain electrical switches that light corresponding numbers on the back board; there may be one light or up to seven, there are seven different characters, and from one to seven may be lighted on this particular operation; then in turn the player must shoot at the hole that corresponds with the number that is lighted in the back board.

"Q. Then I take it that these fingers on the spinner, on the electrical spinner, have stopped and designate the pay number or numbers, before the operator shoves the plunger? A. Right.

Q. So he knows in advance what holes he will have to put the ball in? A. Correct.

Q. Or one of the holes, in order to get trade checks? A. Right."

It was shown that by frequent playing a player might develop skill in the operation of the machine to the extent that he could more than break even. The average player would about break even, whereas the novice was likely to lose. Witnesses testified that the element of skill predominated over that of chance. In explaining how skill may be applied witnesses stated that the player may control the speed of the ball and thus its rebound when it strikes a spring on the top of the board and may also use "english" on the ball in the same manner but not to the same extent as in billiards.

Witnesses demonstrated the use of the machine at the trial. One was a witness who considered himself better than an average player. He tried it 57 times and struck a winning number 24 times. He did not always hit the hole that he "called" but in some instances the ball went into a paying hole that was not called. Another player who had never played the game before won on nearly every shot.

Defendant Kilburn operates a place of business wherein he sells liquors, wines, beer, cigars and tobacco. He held a license as provided in Chapter 153, Laws 1937.

The question before us is whether the use of the machine constitutes a nuisance under section 11124, Revised Codes. If its use constitutes gambling as defined by other sections then the building in which it is used is a nuisance. Whether or not it is a gambling device depends upon section 11159, Revised Codes, as amended by Chapter 153, Laws 1937. That section makes it a misdemeanor for any person to conduct, run or operate "any game of chance played with *** any device whatsoever," or to run or conduct or keep any slot machine, or other similar machine or device, for "money, checks, credits, or any representative of value." It provides, however, that certain types of business may procure a license to operate tables for the use and pleasure of their customers where certain games may be played for pastime and amusement "and for the maintenance of which a charge may be made, to be paid by the users by the purchase of trade checks which must be...