Kemp v. Hammond Hotels , 226 Mass. 409 ( 1917 )

Braley, J.

The first question is whether the plaintiff lost any money at gaming through the use of any of the devices enumerated in R. L. c. 99, § 1. The jury on his direct examination would have been warranted in finding, that, accompanied by an acquaintance and subsequent participant, he went to the defendant’s hotel where they passed to the ninth floor and entered certain rooms, which were connected by a door opening between them. In the first room were a bed, a table and two or three chairs. But on passing through the communicating door, the second room, while bare of all bedroom furniture, was provided with tables, a board on the wall "about six feet square, all tabulated as you see it in a lunch place, with cardboards, with . . . thirty or forty different names which I understood to be horses. On the table as I went in, on the left, was a telephone and wires running from it, and one gentleman sat in behind the table answering the telephone” which rang continuously, or he appeared to the witness to be thus engaged, and “in addition to the telephone on the table” there was a “little telephone on the wall, with a press button.” At another table close to the telephone table “was a large black box, a tin box, and on top ... it was all covered with money.” The remaining table in a corner of the room held a ticker in full operation, to which wires and tapes were attached. The plaintiff had been in the presence of this array “ten or fifteen minutes” when, after refreshments had been served by a bell boy who “carried his tray right to the stand where the telephone was,” the plaintiff gave to one of the operators $360 in cash, “to play on the race” upon information of another operator who had “called ... and told him the horse to go in and bet it on.” This amount having been handed over, the plaintiff was informed that the “race won’t start for quite a few minutes” and upon being asked how much money he could raise and urgently solicited to increase his wager, “I gave him a check for $5,000 on the Brockton Savings Bank to put on the horse. The name of the horse was Alfalfa. I was not familiar with a horse by the name of Alfalfa, and I don’t know whether that horse was dead or alive at the time I played on him. The money was placed,” the check passed over and a yellow card was given to the first operator “on which to go in and play on the horses . . . the ticker was going . . . the race was called, and the man who went by the name of Miller said ‘the horses are ready.’ ” And on his redirect examination he testified, that he purchased a ticket on a horse and wagered and lost $5,360, of which $360 was in money and $5,000 in the form of a note or a check drawn “in my own hand” on a savings bank. What further announcements, if any, were made the record does not disclose. Nor is it material. It may be that the whole scene was arranged and staged as a device for the sole purpose of swindling the plaintiff, and that no actual race ever was intended or run. But this question was an issue of fact for the jury. If a prosecution against the operators had been set on foot under R. L. c. 214, § 17, the equipment of the room as described would have been under § 21, “prima facie evidence” that the room was “kept or occupied for gaming” as well as the “existence of the race, game, contest or other act or event so purporting or appearing to be referred to.” While this rule does not obtain in a civil action, the jury plainly would be justified, if they believed the plaintiff, in finding on his evidence and the legitimate inferences therefrom that he laid a bet on a horse race, lost his bet, and those with whom he bet were the winners. The transaction in all its material aspects is within the wording of the statute, “. . . whoever pays or delivers money or other thing of value to another person for or in consideration of a lottery, policy or pool ticket, certificate, check or slip, or for or in consideration of a chance of drawing or obtaining any money, prize or other thing of value in a lottery or policy game, pool or combination, or other bet” giving to the loser the right within three months to sue the winner for the loss. Grace v. M’Elroy, 1 Allen, 563, 565, 566. We are unable to distinguish a bet on a horse race from a bet on a dog fight or a bet upon a foot race, which were held to be gaming in Grace v. M’Elroy, 1 Allen, 563, and Jones v. Cavanaugh, 149 Mass. 124, decided under Rev. Sts. c. 50, § 12, and Pub. Sts. c. 99, § 1, now by subsequent revisions and codifications R. L. c. 99, § 1. See Commonwealth v. Rosenthal, 195 Mass. 116; Commonwealth v. Sullivan, 218 Mass. 281.

The second question is what is the amount of the plaintiff's loss for which he can recover under § 1, there being of course no cause of action at common law. The plaintiff, as previously stated, gave different versions of the items comprising the total bet. The first amount of $360 was in cash, but, while saying in his direct evidence that he made a check for $5,000, he subsequently said when recalled, and the jury could find, that he drew the paper himself “not on check paper,” and that he did not know “whether it was a check or a note.” Tierney v. Boston Elevated Railway, 216 Mass. 283. The jury could say the note or check was given and accepted in furtherance of, and in promoting gambling, and being in either form commercial paper founded on an illegal consideration, the note or check as between the parties was not merely voidable but void, and uncollectible by the payee. R. L. c. 73, § 202; c. 99, § 3. Murphy v. Rogers, 151 Mass. 118. Bride v. Clark, 161 Mass. 130. Kennedy v. Welch, 196 Mass. 592, 596. It is of no consequence that the amount represented by the note or check was paid at the hotel to the winners after the betting took place and the race was closed, when the paper was returned to the plaintiff. The money handed over was in settlement of the bet, for there was no legal obligation to be discharged. Mason v. Waite, 17 Mass. 560, 563. Scollans v. Flynn, 120 Mass. 271, 274. It moreover was money lost at gaming which the plaintiff could have recovered from the winners. R. L. c. 99, § 1.

But if as against them the plaintiff could have recovered the entire amount, the action is brought under R. L. c. 99, § 2, which provides that “The owner, tenant or occupant of a house or building in which money or goods are lost, paid or delivered in any form of gaming referred to in the preceding section . . . with the knowledge or consent of said owner, occupant, or tenant, shall be liable to an action in the same manner and to the same extent as the winner or receiver thereof is liable by the provisions of the preceding section.” And the third question is, whether there is any evidence that the defendant within the meaning of the statute had knowledge of the use which was being made of this portion of its premises.

The jury on all the evidence could find, not only that the room had been equipped and connected with the general telephone service as previously described, and the occupants served with liquors, but, after they had departed, there were holes in the wall of the room half an inch in diameter apparently made by screws or nails, and that the rooms, which had been continuously occupied by the same guests for quite a period, were in charge of the defendant’s chambermaid. It also is evident, or at least the jury could have so found, that from the very nature and character of the proceedings, even if conducted behind closed doors, there must have been pronounced intimations to all in the vicinity from the announcements of the races and the continual ringing of the telephone that the room or rooms were not being used solely as apartments for lodging. The word “knowledge” as used in the statute should not be confined to actual personal observation of what is going on under the owner’s roof. If thus limited, gambling in all its forms which the statute is designed to suppress, while in some danger of discovery, generally would be impossible of detection where the occupancy of the wrongdoers acting with great secrecy was of short duration. The word is synonymous with notice of such circumstances as ordinarily upon investigation would lead the owner in the exercise of reasonable diligence to a knowledge of the principal fact. It has been so defined in prosecutions under R. L. c. 208, § 53, for receiving stolen goods knowing them to have been stolen. Commonwealth v. Finn, 108 Mass. 466. Commonwealth v. Leonard, 140 Mass. 473, 478, 479. It was for the jury, to whom the question was rightly submitted, to determine whether the defendant’s general manager by reason of his relation to the business, and control over it which gave him the opportunity to obtain full information, was chargeable with notice of the unlawful use which was being made of the room or rooms in question. Hatch v. Carpenter, 9 Gray, 271, 274. Story v. Buffum, 8 Allen, 35.

It follows from what has been said that the first four requests were denied rightly, and that the eleventh and twelfth were properly modified, while the instructions as to the defendant’s knowledge are unexceptionable.

Exceptions overruled.