Crooks v. McMahon

48 Mo. App. 48 | Mo. Ct. App. | 1892

Ellison, J.

This action is based on section 5209, Revised Statutes, 1889, to recover money lost on a game of poker. The statute reads that “ Any person who shall lose any money or property at any game or gambling device may recover the same by civil action.”

Plaintiff, one Clinton and defendant were engaged in the game and plaintiff lost several checks on a bank as well as some money, the aggregate being over $400. The checks were cashed by defendant the next day after winning them. The court refused an instruction, stating in effect that if the defendant did not win from plaintiff but won from Clinton,' after Clinton won from plaintiff that plaintiff could not recover.

The case presents this question: When A, B and C engage in a. game of poker and B wins A’s money, and afterwards, in same game, all three remaining in the game, C wins it from B, can A recover from C, or is his action against B, the party to whom his money first passed ?

Our conclusion is that he may maintain the action against C. It mxist be presumed that when the parties entered into the game, they understood that the money bet would change back and forth from one to the other, and that he who finally came out loser would be the loser at the hands of him who came out winner. The money finally lost by the loser is in the hands of those who are winners at the close of the game and against these the loser has a separate action for whatever sum they have respectively won.

The “oneness” or specific identity of the money passing between the parties amounts to nothing. The question is who came out winner in the game, for their gain is the losers’ loss, and they must respond to his action for such loss.

The result is that we affirm the judgment.

All concur.