Stapp v. Mason

Opinion of tiif court by JUDGE HOBSON — Affirming. As shown by the evidence in the casa, and, in substance, found by the verdict of the jury, C. A. Stapp, the husband of appellant, Nannie W. Stapp, in connection with T. P. Mason and O. F. Cody, opened a gambling house in the city of Henderson, which they ran for some time.; getting a takeout on all the games played there. C. A. Stapp played in these games, and lost a considerable amount of money, which was the property of his wife, Nannie Stapp, and which he held as her agent. She thereupon filed this suit to recover of her husband’s partners the money thus lost by him at the gaming place set up by him and his partners, on the ground that they had enticed him into playing there by setting up the gaining place. The suit seems to have been brought under section 1969, Kentucky Statutes, which is as follows: “Whoever shall invite, persuade or otherwise induce another to visit any place where any gaming mentioned or included in section one thousand nine hundred and sixty of this chapter is carried on, shall be fined from fifty [903] to five hundred dollars, and, moreover, be responsible to such other and his creditor for whatever he may lose in gaming at such place.” It is charged in the petition that the husband, by betting and losing the money of his wife, became indebted to her in that amount, and that she thereby became entitled to sue for and recover it. It is earnestly maintained that, although the husband himself could not maintain the action against his partner, the wife, who was innocent of any wrong, and is his creditor, may maintain it. But back of this is the question whether the husband is one of the persons provided for by the section, for, if he is not covered by the section, then his creditors stand in no. better light than he, for they are creditors of a person not provided for by the section, and only the creditors of such persons as are given a right of action by the section can maintain an action under it. This is not an action under section 1956, providing for a recovery of the money lost from the winner, for the facts required by that section are not alleged. The question, then, simply is, is a man who, jointly with other’s, sets up a gaming place, and plays there himself, within the protection of the statute, as against his. partners in the enterprise, on the ground that they thereby invited, persuaded, or otherwise induced him to visit the place ? The question is not new. In Brown v. Thompson, 77 Ky., 538, 29 Am. Rep., 416, the question was presented whether one who was interested in setting up a faro bank, and who lost money to those who bet against the bank, could recover it.- It was held he could not recover. The court said: “It is a familiar rule that a case within the letter, but not within the spirit, of a remedial statute, is not embraced by it. The courts will look beyond the letter, to the legislative purpose. and intent, and will not, by a blind adherence to the letter, permit a law to become the shelter of those it was [904] intended to punish, noi* to be used to encourage practices it was made to ■ suppress.” It was accordingly held that as the statute was enacted for the protection of the community against gamblers, and not for their protection, one who has set up the faro bank was not within the protection of the statute. This case was followed and approved in Elias v. Gill, 92 Ky., 569 (13 R., 798) (18 S. W., 454), where the question was whether one who engaged • in the business of selling pools on horse races was within the protection of the statute. The court, after referring- to the previous case, said: “And looking to the evil of gaming, suppression of which was the object of the statute, it is obvious that persons who engage in gaming by means of selling pools on horse races are no more within the protection of that statute than those who set up or keep faro banks, for in each case gaming is carried on and made a business.” These cases seem to us conclusive of- the question before us. It was, no doubt, contemplated by all of the partners that each of them would contribute what he could to the success of the common enterprise. The more gaming was done, the more the take-out, and C. A. Stapp was as much interested in this take-out as anybody else. In playing there he therefore was furthering his own business, which was a felony. Kentucky Statutes, section 1960. It was never intended by the Legislature to give him a right of action against his partners, or them against him, for losses in the business, or to require the court to settle up for them their felonious enterprise. And if he. is not given a, right of action, then his creditor can not sue, for only the creditor of a person who can sue is. given the right of action. Judgment affirmed. Whole court sitting. Petition for rehearing by appellant overruled.