Stern v. Miner
| Decision Date | 04 November 1941 |
| Citation | 300 N.W. 738,239 Wis. 41 |
| Parties | STERN v. MINER et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Barron County; Carl H. Daley, Judge.
Affirmed.
This is an action by J. L. Stern, plaintiff, to recover certain license fees under a written contract whereby Affiliated Enterprises, Inc., granted to George Miner and Miner Amusement Company, a corporation, defendants, a limited license to use and operate an advertising plan known as “bank night”, under certain copyrights and patents pending at a weekly license rental of $7.50 per week for fifty-two weeks from August 1, 1936 and from year to year thereafter unless cancelled by a notice within thirty days before the expiration of the contract. Plaintiff, J. L. Stern, sues as the assignee of this contract. The complaint alleges that Affiliated Enterprises, Inc., furnished defendant with all books and other equipment provided for in the contract and completely performed its contract; that defendants gave no notice within the thirty day period of desire to terminate the license and that on April 9, 1940 defendants were indebted to Affiliated Enterprises in the sum of $1,007.50. Several defenses were set up in the answer, the only one of which is important here being that the plan licensed to defendants constitutes a lottery; that the contract is illegal and that there can be no recovery from defendants. Defendants thereafter moved for summary judgment. The supporting affidavits set forth the plan in detail as follows: Persons might register with the theater by writing their names on sheets or cards provided for that purpose, each registrant being given a distinct serial number. The card bearing such number was placed in a receptacle from which drawings were made on a designated day and hour of a particular night each week. The number drawn was referred to the list of registrants to determine the name and the name was announced both inside and outside the theater. If the person whose name was so announced responded within a specified time he was awarded a cash prize. Otherwise, the money was added to the amount awarded the following week. Any person was allowed to register without payment of admission fees, and if the winner was not already in the theater he was not required to purchase a ticket in order to enter and claim his prize money. The affidavit states that in practical application the vast majority of registrants bought admission tickets and paid for the opportunity to participate in the drawings, most of them attending the show but some remaining in the lobby during the drawing; that the plan was intended to, and did result in greatly increasing the paid attendance at the theater on the day or nights of the weekly drawings, and that it necessarily tended to, and did demoralize winners and impoverish losers; that the plan is in all essential respects identical with the plan used by the LaCrosse Theater Company at LaCrosse, Wisconsin, held to be a lottery by the Supreme Court of Wisconsin, State ex rel. Cowie v. LaCrosse Theaters Co., 232 Wis. 153, 286 N.W. 707; that the tabulation of paid admissions indicates a large increase in attendance on bank nights.
Plaintiff's affidavits are to the effect that the scheme is nothing but an advertising device; that it has no connection with admission to the theater at all; that persons in or about the theater were usually allowed about three minutes to claim their award. Plaintiff's affidavit denies that the practical operation of the plan is that a vast majority of registrants buy admission tickets for the privilege of participating in the drawings; admits that the purpose of the plan is advertising; denies knowledge as to the manner in which defendants operated bank night; denies that the plan is like the LaCrosse case, supra, because in the LaCrosse case absentee registrant cards were sold; and disclaims any personal knowledge as to the amount of business done.
Upon these affidavits the trial court entered summary judgment for defendants on January 18, 1941. Plaintiff a...
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...725; State v. Wilson, 109 Vt. 349, 196 A. 757; State ex rel. Cowie v. La Crosse Theatres Co., 232 Wis. 153, 286 N.W. 707; Stern v. Miner, 239 Wis. 41, 300 N.W. 738. Contra: State v. Horn, 16 N.J.Misc. 319, 1. A.2d 51.3 Grimes v. State, 235 Ala. 192, 178 So. 73; Affiliated Enterprises, Inc. ......
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