Francis v. Mauldin , 215 S.C. 374 ( 1949 )

After careful consideration I am constrained to dissent from that portion of the opinion of Mr. Justice Fishburne which sustains against demurrer respondent's counterclaim for payments made by him upon the gambling obligations. (With the other conclusions I agree.)

I disagree because I think that respondent's payments which go to make up the counterclaim were voluntary and made with full knowledge of all relevant facts which precludes recovery, S.C. cases in 26 Southeastern Digest, Payment, Key 82, page 906, and the case does not come within the exception created by the statute Code sec. 6308. Moreover, at common law the parties to a gambling transaction stand in pari delicto and money lost and paid over cannot be recovered. 16 Southeastern Digest, Gaming, Key 26 et seq. page 733 et seq.

In my view Whelloch v. Bobo, 1 Harp. 421, is conclusive authority in this court and is not weakened by Owen v.Davis, 1 Bailey 315. The latter was a contest between the winners and recovery was allowed. Vital distinction between the cited cases is made clear by the numerous authorities which were reviewed in our recent decision of Pendarvis v.Berry, 214 S.C. 363, 52 S.E.2d 705.

The New Mexico case relied upon, Mann v. Gordon,15 N.M. 652, 110 P. 1043, was decided by a closely divided court. Our case of Whelloch, supra, was discussed by the majority and repudiated, apparently partially because of its venerability. On the other hand, the minority opinion contains a clear exposition of the reasoning and result of theWhelloch case, to which reference may be had, and the minority of the court, consisting of two out of five Justices, would have followed it. More important upon the inapplicability of the New Mexico decision is the generality of their brief statute, which follows: "Any person who shall lose any money or property at any game of cards, or at any gambling device, may recover the same by action of debt, if money; if property, by action of trover, replevin or detinue." Comp. Laws 1897, § 3199.

Our statute (Code sec. 6308) permits recovery of an ordinarily irrecoverable voluntary payment under the circumstances stated in the statute, namely, when plaintiff "at any time or sitting * * * lose * * * the sum or value of fifty dollars, and shall pay or deliver the same * * *." It seems to me that the very terms of the statute exclude its application to this case where a void obligation (Code sec. 6311) was subsequently given for the loss and months afterward voluntary payments were made on the void obligation. I do not think that the aid of the court should be extended to a violator of the law further than expressly authorized by the statute. Should the legislature have intended to make the terms of it applicable to the facts of this case, that is to subsequent voluntary payments upon a void obligation issued for the loss, it would have so provided. I think it is beyond liberal construction to enlarge the statute so as to apply here.

For the reasons stated I would sustain the demurrer to the counterclaim.

OXNER, J., concurs.