Oatman v. Port Huron Chief of Police

Reid, J. Plaintiff and appellant filed this bill to enjoin the chief of police of the city of Port Huron from interfering with the operation of plaintiff’s pin-ball machines, and the sheriff of St. Clair county intervened. Plaintiff has about 60 pin-ball machines in operation in public places in and near Port Huron. The person playing the machine deposits a five-cent coin which causes a lever to drop, a ball is propelled up a slight slope and its progress down again is interrupted by pins or bumpers, different lights and gadgets are lighted up and the downward course of the ball, which is entirely by chance or with a slight variation by reason of acquired knowledge and skill on the part of the player, determines whether the player is lucky or has obtained a favorable result in scored points. The skill of the player in any event is a very slight factor in changing the result. The machine is of the type generally used and well recognized as a gambling device. Plaintiff claims that his machines are not actually used or put out in various public places for the pur *59 pose of returning cash but give only free plays to lucky players. Since these free plays, the testimony shows, would ordinarily cost the player five cents each, the opportunity to have free plays is a thing of value. Players who are lucky may receive as many as 60 free plays, worth $3. It requires about three minutes to make a play. People v. One Pinball Machine owned by Henry Fox, 316 Ill. App. 161 (44 N. E. [2d] 950). The fact that the police commissioner and sheriff, appellees, make no proof that cash is actually paid in lieu of the free plays, does not alter the character of the machine one iota. It is an apparatus ordinarily used for gambling, a gaming device. There is nothing to stop the proprietor of any establishment where the machine is in operation from turning the luck from free plays to cash as ordinarily occurs in the use of such machines. Appellant cites Henry v. Kuney, 280 Mich. 188, and Gibson v. Martin, 308 Mich. 178. It must be noted that in each of those cases it is shown that the successful player has the option of receiving cash, expressly denied in the instant case. In Henry v. Kuney, supra, p. 192, the general rule is laid down, “Where there is an element of chance in the operation of the slot machine — where the one who plays the machine stands to win or lose money, trade checks, or prizes, by a chance, — the machine is a gambling device.” There is no difference in principle between a trade check and a free play. In State, ex rel. Green, Deputy Solicitor, v. One 5¢ Fifth Inning Base Ball Machine, 241 Ala. 455 (3 South. [2d] 27), the Alabama supreme court construed and applied a statute forbidding gambling devices defined as, “Any machine, mechanical device, contrivance, appliance or inven *60 tion, whatever its name or character, which is operated or can be operated as a game of chance.” Though the court found, p. 457, ‘ ‘ There is no proof the machine has-been used for gambling, nor that players were offered inducements by way of prizes or other awards,” the machine was found to be a gambling device, of. which the court further said, “By placing a nickel in the slot of this machine several balls are released1 which are ejected on the board by pulling a plunger and striking against the ball. When the ball strikes the projections or bumpers on the board, a certain score would be made, and by hitting certain bumpers a higher score results than in striking-others.” There are varying decisions as to pin-ball machines in various States depending in some instances at least on the precise phraseology of the particular statute. Appellees were justified in treating these machines as apparatus used for gaming or gambling within the meaning of our statute, Act No. 328, § 302, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-302, Stat. Ann. § 28.534). The decree dismissing the bill is affirmed, with costs, to appellees. Wiest, Bittzel,' Btjshnell, and Sharpe, JJ., concurred with Reid, J.