Cartright v. McElwain

Opinion of the Court by Wm. Rogers Clay, Commissioner Affirming. Plaintiff, H. T. McElwain, brought this action against J. F. Cartwright to recover the sum of $800 alleged to have been lost in a game of poker. The jury returned a verdict in favor of plaintiff, and the defendant appeals. According to the evidence for the plaintiff, he came to Bowling Green on the 22d or 23d of November, 1907, having in his possession a check for $1,311.25 given him that day by his father. Soon after reaching Bowling Green, he was seen in company with one John Martin, who had been sleeping in a room over the saloon conducted' in defendant’s name. A thousand dollars of the money given him by his father was deposited by plaintiff in the Bowling Green National Bank. During the next 24 hours after his arrival plaintiff claims that he lost in a poker game conducted in the second story of the building in which the saloon was situated the sum of $800. The room where the game took place could be reached either from the inside of the saloon or from the outside. The checks showing the payments in question were produced and — 85 — made a part of the record. The license for the saloon was taken ont in the name of J. F. Cartwright. After-wards, in executing bond, Cartwright declared that he was the owner of the saloon. The saloon was con-. ducted by Bob and Charles Cartwright, brothers of the defendant. The checks given' by plaintiff were made payable to J. P. Cartwright, and were deposited to his credit in the Bowling Green National Bank. Por the defendant, J. P. Cartwright testified that he had no knowledge of any game being conducted in the building wherein the saloon was located, and that he did not authorize any one to conduct the game. He knew that the saloon was being conducted in his name; did not know exactly where the deposits were being made. They were made for a while at the Citizens’ National Bank. Defendant was not permitted to testify that he never exercised any control or management over the saloon, or that he did not at any time receive any of the proceeds or profits of the business, or that he did not buy any whisky, wine, beer, or other stock for the saloon. According to the testimony of Bob and Charles Cartwright, the money claimed to have been lost by plaintiff was not lost at all in a game of poker; no game was played in the room above the saloon or anywhere else in the building. Plaintiff was spending his money pretty freely, and they simply cashed his checks and gave him the money. Certain of his checks were deposited to the credit of J. P. Cartwright. All the parties claimed by plaintiff to have participated in the game, with the exception of plaintiff, denied that there had been such a game. It is insisted by'counsel for defendant that the court erred in excluding the defendant’s .testimony to the effect that he exercised no control over the saloon, that he did not participate in the profits thereof, and — 86 — that he did not purchase any of the supplies for the saloon. We are of the opinion that the testimony was properly excluded. Defendant obtained in his own name a license to- conduct a saloon. He permitted his brothers, Boh and Charles' Cartwright, to conduct the saloon in his name, and deposit in. his name receipts therefrom. He thus made his brothers his agents, in. the. conduct of the saloon. It may be true that in settling matters- among themselves the defendant was only the nominal owner of the -whisky, goods1, etc., but the right to sell them and to conduct the business as. a going concern was alone in defendant, and those who- operated the place did so with his consent and were his agents. As the saloon was conducted in his name, and as the receipts from the saloon were deposited in his name in the bank, the defendant should not be permitted to escape liability on the ground that he was only the- nominal owner of the saloon and exercised no- control in its management.* How the profits of the saloon were divided was immaterial, for the facts show that he- was the principal and his brothers merely his agents. The court instructed the jury as follows: “(1) The court instructs the jury that if they believe from the evidence that the plaintiff lost at or upon a game of chance,- known as poker, played by him and others in the house or building in which defendant, under a license, had a saloon and was the proprietor or owner thereof, the sum of $800.00, or any greater sum of value than $5, within 24 hours of the first loss, if any, and further believe that the defendant, J. Ft Cartwright, received the money that plaintiff lost upon the game, or any part of it, to his credit in bank and subject to his check of order, or that it was placed to his credit in bank, or cashed by — 87 — him or his agent, they will find for plaintiff as against defendant the amount that they believe plaintiff lost at said game or games, not to exceed the amount sued for, to-wit, $800. “(2) If the jury believe from the evidence that plaintiff gave to Charles Cartwright checks for such sum or sums of money amounting to $800, and that Charles Cartwright paid him the money upon said checks, and that he d'id not lose said money upon a game of poker, they will find for defendant as to such amount so paid by Charles Cartwright to the plaintiff upon check, or checks, not to exceed $800, and, if they believe that the entire $800 was so paid by Charles Cartwright to the plaintiff, they will find for the defendant. ‘ ‘ (3) Although the jury may believe from the evidence that the defendant, J. F. Cartwright, was the owner of the saloon business conducted on Main street in Bowling Green, Ky., and may further believe that Robert or Charles Cartwright, or other person, above said saloon, conducted a gambling room wherein plaintiff lost the money sued for, or some part thereof, yet if they further believe from the evidence that the defendant did not authorize said Robert or Charles Cartwright to run or conduct said gambling room, and did not participate in any of the profits thereof, if any, or received any of the .money, lost by plaintiff, then the jury shall find for the defendant.” Counsel for defendant contend that instructions 1 and 3 are erroneous. It is insisted that instruction No. 1 is erroneous, in that it made the defendant responsible for losses in a game played any where in the house or building in which the saloon happened to be, and instruction No. 3 is erroneous in that it did not require the jury to believe that the defendant know — 88 — ingly participated in any of the profits thereof. The first objection is untenable, for the reason that it was not shown or claimed that the room where the gambling was alleged to have taken place had been rented to, or was under the control of other parties. On the contrary, it appears from the evidence of defendant’s brothers that they had charge of the room. It matters not how large the building, was, just so the room wherein the game took place was in charge of the defendant’s agents. Furthermore, the jury were required to believe the additional fact that the defendant received a part of the money lost before they could find for plaintiff. Nor was it necessary to show that the defendant knowingly participated in the profits. Under the rule laid down in the case of Triplett v. Seelbach, 91 Ky. 30, 12 Ky. Law Rep. 661, it is of no consequence how much the successful player actually wins, as the law will not apportion the wrong. In this case a portion at least of the money lost stands to the credit of the defendant in the Bowling Green National Bank. This money being lost in gaming, he will not be permitted1 to escape liability on the ground that he did not knowingly participate in the profits of the game. He will not be permitted to retain the money and to defeat a recovery merely on the ground of lack of knowledge. Having obtained a license in his own name, and1 having permitted his brothers to conduct the saloon in his name, and the checks for the money lost having been made payable to him and thereafter a portion of the money lost having been deposited to his credit, defendant was liable, unless he did not authorize his brothers to conduct the gambling room and did not participate in any of the profits thereof or receive any money lost by plaintiff. This issue was properly submitted to the jury. — 89 — Perceiving no error in the record prejudicial to the substantial rights of the defendant, the judgment is affirmed.