Talley v. Mathis
| Decision Date | 20 February 1995 |
| Docket Number | No. S94G0947,S94G0947 |
| Citation | 453 S.E.2d 704,265 Ga. 179 |
| Parties | TALLEY v. MATHIS et al. |
| Court | Georgia Supreme Court |
Hardy Gregory, Jr., Davis, Gregory, Christy & Forehand, Cordele, Frank H. Jones, Jones, Byington, Durham & Payne, Rome, for Talley.
C. King Askew, Mark M.J. Webb, Brinson Askew Berry Seigler Richardson & Davis, C. Wade Monk, II, Shaw, Maddox, Graham, Monk & Boling, S. David Smith, Jr., Smith, Price & Wright, Rome, for Mathis et al.
Appellant-plaintiff filed suit, seeking to recover a share of the proceeds of the winning ticket in a lottery sponsored by the State of Kentucky. According to the allegations of appellant's complaint, he and appellee-defendants had agreed to purchase the ticket jointly and to share the proceeds if they won. Appellees moved to dismiss on the ground that the alleged agreement was unenforceable as against public policy. The trial court granted appellees' motion and the Court of Appeals affirmed. Talley v. Mathis, 212 Ga.App. 330, 441 S.E.2d 854 (1994). We granted certiorari in order to review the opinion of the Court of Appeals.
1. "Gambling contracts are void...." OCGA § 13-8-3. Accordingly, if appellant entered into a "gambling contract" with appellees, he has no viable claim against them for the enforcement of that contract. However,
[i]n a gambling contract one of [the parties] is certain to lose. By the terms of such a contract the consideration must fall to the one or the other upon the determination of the specified event. [Cits.]
Martin v. Citizens Bank of Marshallville, 177 Ga. 871, 874(2), 171 S.E. 711 (1933). Appellant does not allege that he and appellees contracted to gamble against one another and that appellees lost. It is alleged that he and appellees jointly contracted to gamble against the State of Kentucky and that they won.
It follows that the only "gambling contract" involved in this case is that which exists between the State of Kentucky and the holder of the winning lottery ticket. The State of Kentucky is not a party in this action and there is no contention that that state's "gambling contract" would be unenforceable by the holder of the winning lottery ticket. Indeed, the enforceability of that state's "gambling contract" apparently has been recognized through its agreement to pay the lottery proceeds to appellees in their capacities as holders of the winning ticket.
The Court of Appeals erred, therefore, in relying upon OCGA § 13-8-3 as authority for affirming the grant of appellees' motion to dismiss. Appellant alleges that, although he is not an actual holder of the lottery ticket with any viable "gambling contract" claim against the State of Kentucky, he is, as against appellees, one of the owners of the lottery ticket with a viable claim for a share of the proceeds of the winning joint "gambling contract" against the State of Kentucky. Based upon these allegations, the issue to be resolved is whether the public policy of this state will permit appellees to evade enforcement of their own alleged agreement to purchase the lottery ticket jointly with appellant and to share the proceeds of that ticket with him.
2. "A contract to do an immoral or illegal thing is void." OCGA § 13-8-1. However, the lottery was legal in Kentucky and the purchase by a Georgia resident of a ticket in that lottery would not necessarily be an immoral or illegal act. Compare Bloodworth v. Gay, 213 Ga. 51, 96 S.E.2d 602 (1957); Kelly v. Banda, 116 Ga.App. 421, 157 S.E.2d 782 (1967); Boyd v. Piggly Wiggly Southern, Inc., 115 Ga.App. 628, 155 S.E.2d 630 (1967). Appellant did not contract with appellees for the illegal purchase in Georgia of the Kentucky lottery ticket. It is alleged that the ticket was legally purchased with joint funds in Kentucky by one of the appellees. If appellant had personally gone to Kentucky and bought a lottery ticket for himself, he would not be guilty of the crime of "gambling" in Georgia. Likewise, he would not be guilty of the crime of "commercial gambling" in Georgia simply because he gave his share of the purchase price to one of the appellees in Georgia who then forwarded the full purchase price to the appellee in Kentucky. Under those circumstances, appellant was merely using appellees as his agents for engaging in the lawful act of gambling in Kentucky.
The only agreement that is alleged to have...
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