Kizer v. Walden

65 N.E. 116, 198 Ill. 274

Opinion

Mr. Chief Justice Magruder

delivered the opinion of the court;

First — Section 132 of the Criminal Code provides that “any person, who shall, at any time or sitting, by playing at cards, dice or any other game or games, or by betting on the side or hands of such as do game, .* * * lose to any person so playing or betting, any sum of money or other valuable thing, amounting in the whole to the sum of $10.00, and shall pay or deliver the same or any part thereof, the person so losing and paying or delivering the same, shall be at liberty to sue for and recover the money, goods or other valuable thing, so lost and paid or delivered, or any part thereof, or the full value of the same, by action of debt, replevin, assumpsit or trover, or proceeding in chancery, from the winner thereof, with costs, in any court of competent jurisdiction,” etc. And said section concludes as follows: “In case the person who shall lose such money or other thing, as aforesaid, shall not, within six months, really and dona fide, and without covin or collusion, sue and with effect prosecute for such money or other thing, by him lost and paid or delivered, as aforesaid, it shall be lawful for any person to sue for, and recover treble the value of the money, goods, chattels and other things, with costs of suit, by special action on the case, against such winner aforesaid; one-half to use of the county, and the other to the person suing.” (1 Starr & Curt. Ann. Stat. — 2d ed.— pp. 1299, 1300).

We have held that the legal effect of this section of the Criminal Code is to limit the time, in which the loser may bring his action, to six months, and to bar the bringing of such action after the lapse of that time; and that, after that period has elapsed without a suit by the loser, any other person may sue the winner and recover treble the value of the money, etc., one-half to the use of the county, and the other half to the use of the person suing. (Holland v. Swain, 94 Ill. 154).

The person, alleged to have lost the money by gaming to the appellants, was Frank Walden, the brother of the present appellee, James Walden, who brought this suit in the court below. Frank Walden could only have recovered the amount of his losses if he had elected to sue the appellants within six months; and if he had brought such suit within six months, it was his duty to prosecute it in good faith, “without covin or collusion.” The words, “covin or collusion,” refer to covin or collusion between the person who loses and the person who wins, and not between the loser and the third person suing for treble the amount lost. Cases might arise where, by collusion between the loser and the winner, the former might bring a collusive suit against the latter, not with a view of recovering the amount of the loss, but for the purpose of preventing a suit for treble the amount of the loss by any third person. It is for this reason that the statute prohibits collusion between the loser and the winner. (Cole v. Applebury, 136 Mass. 529).

In order to entitle the appellee to recover, it was necessary for him to show that his brother had not brought suit for the money lost within six months. At the close of the evidence introduced by appellee, as plaintiff below, appellants moved the court to exclude plaintiff’s evidence arid direct the jury to find for the appellants, defendants below, upon the ground that there was no evidence, showing that a suit had not been brought by Frank Walden within six months to recover the moneys he may have lost. This motion was overruled, and the defendants took exception. Counsel for appellee, plaintiff below, then moved the court to be allowed to re-open their case to introduce evidence upon this allegation of their declaration. Appellants objected, but their objections were overruled, and leave was given to appellee to re-open his case to introduce such evidence. To this ruling the defendants took exception.

Thereupon, Frank Walden was re-called, and the following question was asked him, and the following answer was made by him: “Q. Mr. Walden, I will ask you if you ever brought a suit either collectively or separately against the Kizer brothers for money lost by you in their gambling house? — A. No, sir.” Upon the cross-examination, counsel for appellants asked Frank Walden the following questions, to which appellee objected, and, the objections being sustained, appellants excepted. The questions, so asked upon cross-examination, were as follows: “Q. I will ask you if you didn’t state to George Noffiett in the presence of two other persons some time on or about March 1,1900, in Mattoon, that you had been advised by your attorneys to wait until six months had gone by, and then bring suit in your brother’s name, and get three times the amount.” “Q. I will ask you if you did not say that you were going to have your brother bring the suit.” “Q. I will ask you if you have not consulted attorneys in Mattoon and Shelbyville both about bringing this suit in your brother’s name.”

We are of the opinion that the trial court committed error in refusing to allow these questions to be answered. Frank Walden could not wait six months, and then maintain an action in the name of his brother, or some other person, for the purpose, of recovering against the winner treble the amount of his losses. Hence, the appellants should have been allowed to prove, if they could, that, while the suit was being prosecuted in the name of James Walden, it was really and truly the suit of Frank Walden, and that he and the appellee had conspired together for the purpose of recovering from appellants the treble amount authorized to be recovered by the statute.

This precise question has been decided by the Supreme Court of Massachusetts in the case of Cole v. Applebury, supra. The latter case arose under a Massachusetts statute, which is similar in its terms to the Illinois statute upon the subject. The Massachusetts statute provided, in substance, that whoever, by playing at cards, etc., should lose to any person any money and pay the same, might sue for and recover such money in an action of contract, and if the loser did not, within three months after such loss, without covin or collusion, prosecute with effect for such money, then any person might sue for and recover treble the value thereof in an action of tort. The suit in the Gole case was by Willie I. Cole to recover treble the amount of a sum of money, alleged to have been lost at gaming by his brother, Henry G. Cole, to one Applebury. The defendant there contended that the action was not prosecuted by the plaintiff in good faith, and that Henry G. Cole was the real prosecutor of the action in the name of his brother, who was only the nominal plaintiff. Upon this subject the Supreme Court of Massachusetts in that case said: “The loser can maintain no action for the penalty and none to recover the property lost, unless he brings it within three months after the loss; and the presiding justice rightly instructed the jury that, if the ‘suit, although in the name of Willie I. Cole, is really and truly not his' suit, but is the suit of Henry G-. Cole, and was brought for him and by him in the name of the plaintiff, the defendants are entitled to a verdict.’ * ' * * It is said in that opinion [referring to Morris v. Farrington, 133 Mass. 466,] that the statute does not provide that the right of action in the plaintiff ‘shall be defeated by any agreement between the plaintiff and the loser, by which the latter is to receive some benefit from the suit made after the cause of action had vested in the plaintiff.’ If the agreement does not go to the extent of making it the loser’s suit, we think this is correct.”

Inasmuch as, in the case at bar, Frank Walden could maintain no action after the six months had expired, then if a suit was brought in the name of James Walden, it was competent for appellants to show that such suit was really the suit of Frank Walden, although brought in the name of his brother, James Walden.

The question, propounded to Frank Walden upon the re-opening of the case, was not merely whether he had brought a suit against the Kizer brothers for money lost by him in their gambling house Within six months, but the question was whether he had ever brought suit against the Kizer brothers for money so lost. It would have been sufficient to justify the suit by the appellee, if it had been shown that no suit had been brought by Frank Walden within six months, but the question was broad enough to reach down to the date when the present suit was brought on September 1, 1900. Frank Walden, having sworn upon his direct examination that he had never brought any suit against the Kizer brothers, it certainly was competent upon cross-examination to ask him if he had been advised to wait until the six months had gone by and then to bring suit in his brother’s name to recover three times the amount. The question was equivalent to a question whether the present suit was not his suit in his brother’s name, and if so, it showed an interest on his part in the suit. It is always competent to show the interest of a party upon cross-examination. The cross-examination was legitimate and proper in view of the question asked upon the direct examination. Having said that he had never brought any suit, he could be asked questions, tending to show that he had, as matter of fact, brought the present suit for himself in another person’s name. As he had already stated that he had never brought any suit, it was proper to ask him if he had not stated to George Nofdett that he had been advised to bring the present suit in his brother’s name; and if he had answered in the negative, testimony could have been introduced to contradict him with a view of showing that the statement made upon his direct examination was not correct, to-wit, that he had never brought any suit.

Second■ — By giving the first instruction, which was given for the appellee, the court took the case away from the jury. By that instruction the jury were told to find the issues for the plaintiff and assess the damages at three times the total amount of the losses, etc. In Kinser v. Calumet Fire Clay Co. 165 Ill. 505, we said: “The peremptory instruction to find for the plaintiff was, in effect, taking the case from the jury. When the court directs a verdict, an issue of law is raised upon the whole case, and there is no fact for the jury to find.” In Heinsen v. Lamb, 117 Ill. 549, we said: “It is also assigned for error, that the court improperly instructed the jury to find for the plaintiff. Where the right of recovery depends upon the existence of certain extrinsic facts about which the evidence is conflicting, the court has no right to take the case from the jury.”

It certainly was not proper for the court thus to take the case from the jury, if there was evidence tending to support the defense made by the appellants upon the trial below. (Vallette v. Bilinski, 167 Ill. 564; McDonald v. Village of Lockport, 28 Ill. App. 157; Matson v. Taylor, 35 id. 549; Eden v. Drey, 75 id. 102; Belinski v. Brand, 76 id. 404.)

After the court had given the instruction to the jury to find the issues for the plaintiff, it was unnecessary to give any other instructions whatever. The giving of two of the instructions asked by appellants, and the giving by the court of an instruction to the jury after they had retired to the jury room, were inconsistent with the instruction to the jury to find the issues for the plaintiff. The inconsistency, however, between these instructions could have done the appellants no harm, if the court committed no error in giving the instruction to the jury to find the issues for the plaintiff. In thus, however, taking the case from the jury, we think that the court erred, because there was evidence tending to sustain the defense made by the appellants under the plea of the general issue.

Appellee introduced in evidence upon the trial below a number of checks, drawn by Frank Walden upon banks and cashed by certain third persons, none of whom were the appellants herein. None of the checks introduced in evidence, indorsed by these third persons, were of themselves proof that Frank Walden had lost money in the gambling house of the appellants. It was necessary for the appellee to show that the money, obtained by the checks so drawn, was lost in the gambling house of the appellants. As we read the record, the evidence was to some extent conflicting upon this subject. Counsel for the appellee, however, say that there were a number of checks, each for §10.00 or more, all payable to the order of one of the appellants, or indorsed by one of them, and that these checks were given to appellants in payment of losses, made to them in their gambling house, and were paid by the banks upon which they were drawn. This statement of counsel is sustained by the' evidence of Frank Walden, but‘it is not true that that evidence is not denied or contradicted by the testimony of the appellants. For example, one of these checks was a check for $75.00 indorsed by George Kizer. A witness named Horine swears that, although Kizer cashed this check for $75.00 for Frank Walden and gave him the money, yet the money was not lost at the gambling house of the appellant, but at the gambling" house of another man, named Frost. Appellee is contradicted in his statement in regard to other checks, indorsed by the Kizers, or one of them. The testimony of the appellants'is to the effect that, although Frank Walden obtained money from the Kizers on these checks, he did not lose the money in their gambling house, but in some other gambling house. We pass no opinion upon the value or weight of this testimony, but we think it was for the jury to say whether the statement in regard to this matter, made by Frank Walden, was correct, or whether the statement, made by the witnesses for appellants, was correct. In view of this contradiction and conflict, the court erred in not leaving it to the jury to determine the issues involved, instead of taking the case away from the jury by the instruction given for the appellee. - .

It is strenuously insisted by counsel for appellants that a peremptory instruction, like the one here under consideration, to find for the plaintiff cannot be given in the qui tarn action provided for in section 132 of the Criminal Code, upon the alleged ground that such action is of a criminal character and is really a criminal prosecution; and that in a criminal case the court has no right to instruct the jury to find the defendants guilty, no matter how weak the defense may be. The Supreme Court of Massachusetts held that such a statute as this is a penal statute, and that the recovery of treble the amount lost is authorized, not for the benefit of the informer, but for the punishment of the successful gamester and for the suppression of gaming, and that the statute when enforced is enforced for the public benefit. (Cole v. Applebury, supra). This court has also held that a qui tarn action for treble the amount, lost under said section 132 of the Criminal Code, is purely a prosecution for a penalty for a violation of the penal code. (Robson v. Doyle, 191 Ill. 566). In Robson v. Doyle, supra, we said: “It makes no difference that the suits brought by complainant are civil in form. They are brought for penalties for alleged offenses against the laws of the State, and are criminal cases within the meaning of the constitutional provision.”

We do not deem it necessary, however, to hold that, upon the trial of such a case as this, the court is never authorized to instruct the jury to find the issues for the plaintiff upon the alleged ground that the action is in the nature of a criminal prosecution. We express no opinion upon this proposition, as no authorities are furnished us by counsel upon the question. But we do hold that, in an action of this kind which is criminal in its nature, the rule, that a case should not be taken away from the jury where there is evidence tending to support the cause of action set up by the plaintiff, or the defense insisted upon by the defendant, should be enforced with more strictness than in an ordinary civil action.

For the errors above indicated, we are of the opinion that the courts- below erred. Accordingly, the judgments of the Appellate Court and of the city court of the city of Mattoon are reversed, and the cause is remanded to the latter court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.