Triplett v. Seelbach , 91 Ky. 30 ( 1890 )

JUDGE BENNETT

delivered the opinion oe the court.

The appellant sued the appellees under the provisions of the second and ninth sections of chapter 47 of the General Statutes, to recover from them one thousand nine hundred and five dollars, which he alleges that they, as partners, won from him at games of cards called poker, played in two houses in the city of Louisville, one house at the comer of Sixth and Market streets, the other at the corner of Sixth and Main streets.

The said second section is as follows: “If any person shall lose to another at one time, or within any twenty-four hours, five dollars or more, or property or other thing of value, and shall pay or transfer or deliver the same, such loser, or any creditor of his, may recover the same, or the value thereof, from the winner,” &c.

It is not satisfactorily proven that either of the appellees ever won any money from the appellant by playing with him, but it does satisfactorily appear from the evidence that the appellees, as partners, owned and run the poker-room on the corner of Sixth and Market streets, at which the appellant played poker with divers gentlemen assembled there for that purpose, and at each game a certain per cent, of the winnings was taken by the appellees, out of which was defrayed the expenses of the players for suppers, cigars, &c., and the balance of the per cent., sometimes amounting to as much as fifty dollars a night, went to the appellees, as partners, as profits. This per cent., or “take-out,” as it is called, is a part of the loser’s losses. So the question is, does the taking of this per cent, make the appellees jointly interested in the winnings, as wrong-doers, so as to make them winners of the appellant’s money in the sense of the statute supra ? We do not understand that the winner, in the sense of said statute, must be one of the players, with cards in his hands: but if he is to receive a per cent, of the winnings by the actual player, he is, in the sense of the statute, a winner. He, according to an arrangement with the players and himself, is to receive a part of the winnings as his profits. Why should he not be regarded as a winner in the sense of the statute ? He certainly has a community of interest in the stakes with whoever wins, and this interest is the result of an arrangement with all the players, and this arrangement and division makes him a joint wrong-doer with the winner; it makes no difference which one it may be. If, by an arrangement, the winning was divided between the actual player and another, there is no doubt that the latter would be responsible as a joint wrong-doer for the whole sum won as a winner. Here the arrangement does not make him a partner with any particular player as against the others, but it does make him jointly interested with the winner in the stakes. It is true that he may be indifferent as to which will be the winner; but' as soon as one or the other has won, the arrangement gives him a joint interest in the winning with the actual player, which makes him, in the sense of the statute, a winner. It is not to be understood that the actual winner can not recover from him said per cent, of his own stakes; but this is so because the statute gives the remedy against him in the sense that he is winner, even from the successful player; but, nevertheless, he is jointly interested with the winner in the loser’s losses, which makes bim responsible for them as a joint wrong-doer. It is not the extent but the community of interest that makes wrong-doers responsible for the whole wrong. If each is to receive a certain amount of the result of the unlawful enterprise, this gives them such a community of interest as to render each responsible for the whole amount received.

The ninth section of said statute reads as follows: “Whoever shall invite, persuade or otherwise induce another to visit any place where gaming is carried on shall be fined from fifty to five hundred dollars, and moreover be responsible to such other and his creditors for whatever he may lose in gaming at such place.”

Mr. Seelbach, one of the appellees, states that he and the other appellees fitted up the room on Sixth and Market for a club-room, to which a number of gentlemen, who were patrons of the witness’ hotel, could go and play poker, and to which they did resort for that purpose; and the proof shows that appellant was among the persons that resorted there for that purpose, and that he did play there often. As to the place, it is not' necessary that it should be a gambling place in the largest sense of the term. It is sufficient if it is a place in which gaming is carried on, and the person knowing that it is a place in which gaming is carried on invites, persuades or otherwise induces the other to visit such place, he shall be fined, &c.; and if such person lose any thing by gaming while at such place, the person inviting him,' &c., is responsible to him for whatever he loses at such game. Now, it is the inviting, persuading or inducing another person to visit the place of gaming, knowing it to be such, that is the gravamen of the offense, and makes him responsible for any of such, person’s losses at gaming while, there. It. is not understood that the person inviting or persuading or inducing should make personal application to the person invited, &c., in order to render himself amenable for the fine or to such person; but any conduct of his that induces such person to visit such place is sufficient. If a person furnish a place for the purpose of having others to visit it and game, and any one is induced thereby to visit said place while gaming is going on, the person thus fixing up the place, &c., is liable for the statutory penalty; and he is also liable for any sum that the said person may lose at gaming while visiting said place.

Tested by the foregoing principles, the appellees are liable to the appellant for the amount that the appellant lost at the corner of Sixth and Market streets within five years next before the bringing of this suit. But, according to the proof, the decision of the chancellor must stand as to the matter of the appellees’ liability for the appellant’s losses at Sixth and Main streets.

The judgment is reversed as to the appellees’ liability to the appellant for said losses at Sixth and Market streets within five years next before bringing this suit, which amount the chancellor will ascertain, for which purpose other proof may be taken, and for which he will render judgment against the appellees.