*1 P.2d 725 Evelyn Geis, L. and Ed GEIS Plaintiffs Respondents, COMPANY, OIL
CONTINENTAL Appellant.
No. 13049.
Supreme Court Utah.
June ton, Lowe, Bray Lowe & W.
John Hurley, City, for Salt Lake appellant. McCullough, City, Lake
Leland Salt S. respondents. plaintiffs and CALLISTER, Chief Justice: initiated this recover Plaintiffs action they had won prize they claimed that promotional according the rules in a sponsored by The mat- defendant. contest jury, and a verdict tried before a ter was general awarding plaintiffs was rendered punitive damages patronage card. her damages $1,000, Through own as well $1,500. as that of her employees court ordered husband and his *2 at plaintiffs stations, a new trial defendant’s service alternative she ac- quired verdict from According a reduction the cards. to the testi- mony Geis, $2,500 plaintiffs elected the $1,000; cards, the Mrs. she obtained two which, urging scraped, appeals, that the when ap- Defendant the “HOT” latter. word peared vanished; defend- and then court erred when denied her husband judgment ant’s notwithstand- witnessed this for occurrence motion once. “HOT” plain- slogan was the ing ground the on the control word in verdict the “Ride the complied the rules of the tiffs had not Hot One.” Mrs. Geis took her cards entry by submitting legible agent contest cards. prize defendant’s and claimed the $1,000. Defendant declined make the promotional had a contest Defendant ground award on the printing that the was Defendant’s called “Brand Orbit.” illegible. service dealers station distributed to cus- During trial, the course of the there was tomers small cards presented evidence to the effect that there spots paper conceal- situated covered with thereunder, special markings only discernible un- ing printing became visi- der light cards, ultra violet on the control paper scraped ble the with a when was and the by plaintiffs two cards submitted two sec- coin. The card was divided into had markings neither the nor the indenta- tions, winning up- the the combination tions resulting therefrom. Defendant’s per ex- provided prizes amounts of section pert opinion was sharp that a instru- 50¡S portion had one The lower $5. ment printing had obliterated the on the spot large word. The which concealed one urged by plaintiffs cards to be object portion winners. contest lower of the on the group acquire was which in of cards The trial jury court instructed the combination defend- would reveal one if preponderance it found as, advertising slogans, ant’s “Brand question evidence that the two cards in Orbit,” $2,500; prize “Ride Hot either of them had the word in the “HOT” One,” $1,000; Going,” “Hottest Brand appropriate place and that had $100; Conoco,” and “Go With $25. complied contest, with the terms open they The contest was to all licensed were entitled to recover. Further- drivers; more, purchase necessary; they no was if winning found that the cards game deliberately cards were free. Mrs. Geis was were so devised and construct- solely prizes interested in the ed award- that when rubbed in accordance with ed in the contest lucky appeared on lower half of the instructions word words, rubbing illegal agreement. further
dimly illegibly and an other might illegal exem- since disappeared, jury award action can be based on no damages. agreement, private rights no plary can arise from contest, participating in a prize-winning under urges that appeal, defendant On illegal, considered such as a lot- contest, plaintiffs were rules of the tery, which has constitu- been no there was Defendant claims winners. legislative provisions. tional or In Blair v. deliber- had been the cards evidence Lowham this court stated that the scheme winning words ately designed so disposition of the automobile disappear. cites authori- question plainly lottery within the rights of a con- that the ty to the effect statutory definition and was unlawful. by the prize contest are limited testant in a Accordingly, grant refused ei- offer, be com- and there must terms of the parties ther they relief where relied a contract pliance terms before with those solely prohibited by on a transaction law. pro- rules of the contest is formed. The *3 VI, Article Section of Constitution illegi- game if all cards are void vided that Utah, provides: ble, mutilated, tampered or ir- forged, reasons any way. regular in shall Legislature The authorize not two cards with that submitted any game chance, lottery gift of or en- obliterated, not con- printing did which terprise pretense any any under or for required, the act performance of stitute purpose. cards; therefore, plain- submitting legible 76-27-9, U.C.A.19S3, provides: Section de- accept tiffs in accordance with did not lottery any dispos- A scheme for the offer, and was no contract. fendant’s property by al or distribution of chance aspect this ac among persons paid prom- There is another of who or tion, compelled this to con pay any court ised to valuable consideration expressed An in 87 obtaining proper- sider. admonition for the chance of such A.L.R.2d, Rights ty portion it, any Prize Anno : or a of or for scheme Contests — Remedies, 6S2, any and that the first task property, upon or interest facing seeking any agreement, understanding expec- contestant to enforce or rights allegedly acquired prize-winning in a tation that it is to be distributed or dis- posed chance, showing contest is of lot whether that the scheme called of lottery, gift enterprise, uniformly was raffle or legal, for the refuse may whatever name same be known. their aid in enforcement lend 599, 602, 603, P. 73 Utah Thus, statutory perficially lottery elements of to be a apply and to chance; Prize; lottery constitutional ban all (1) (2) (3) are: of them any lottery. fact amounted valuable consideration.2 to a The court cit- expressed ed State v. Danz and a belief In the instant action the elements of controlling Bingo, it was in Bonus prize chance and are obvious but was there as prizes in Danz the fact any valuable This element consideration? persons Safeway won would attract and extensively was discussed in State ex rel. advertising. to its Schillberg Safeway Stores, Inc.; Washington explained court great significance case is of only be Safeway perusal visit to the of Store similarity cause Washington’s promoter’s advertising under the Danz statutory provisions constitutional rationale amounted to a consideration mov- jurisdiction, those of this but in Blair v. ing player promoter. players Lowham this statutory court followed wagered time, attention, thought, their en- interpretation State v. ergy spent money transportation Danz.5 Safeway case the issue was prize the store for a chance to win a whether a game Bingo” called “Bonus —all of which constituted a valuable considera- a lottery merely advertising device moving players tion from the to the type of a widely employed in merchandis promoter.6 ing. case, As in the participate instant Bingo” “Bonus and to have a chance to jurisdictions, is true that in some prize,
win a slips one received the special lottery has been held that a is a booklets free charge without the neces contract, special requires kind of sity making purchase. consideration, money or its kind such as
The court observed
impoverish
equivalent,
Constitution
which will
the indi-
However,
Washington
any
parts
lottery;
who
with it.7
vidual
*4
and, therefore,
survey
light
it
any
mandate
closely
of this state’s constitutional
appeared
pursuant
scheme or device which
there-
legislative
even su-
enactments
Lowham,
Corporation
(Mo.),
1, supra;
2. Blair v.
Danforth
note
Mobil
v.
State
Oil
Danz,
546,
(1970)
37,
;
v.
140
Knox Indus
Wash.
250 P.
48
455
505
S.W.2d
Corp.
(1926).
(Old.),
A.L.R.
910
1109
tries
v.
258 P.2d
State
Gambling
;
(1953)
A.L.R.2d,
29
Anno:
339,
(1969).
3. 75 Wash.2d
suming plan might this be held ELLETT, result. in the J., concurs illegal, there this be would arise further person
problem: whether the who created but CROCKETT, (dissenting, accepted performance, as- it full could Justice result) : concurring in against sert as a defense an innocent performed. party fully had who We why persuasive reasons are There some previously had occasion to on this comment disposition of this I cannot subject v. Life of McCormick case opin- the main stated in ground case on Corp. Insurance of America.3 We ion. determining such a stated that whether illegality the defense of first is that a number contract should be enforced relied not asserted nor of the contract was in each indi- factors should be considered on, raised or any manner nor vidual case: court; any manner the district criminality degree evil (a) raised, argued this court. briefed or involved; rule, quality moral (b) the advised settled well a well 109; Simpson Motors, 384 P.2d Gen’l mat will consider 1.That 301, appeal 2d P.2d 399. 24 Utah the first time on ters raised for County Sew. Hamilton v. Salt Lake see Beverages Inc., 2. v. National See Walters 235, 216, Dist., Imp. 2d 390 P.2d 15 Utah 301, P.2d 524. 18 Utah 2d cited; also Evans v. and cases therein 239; Thomp 451, Shand, ,(1957) ; 280 P. Utah 2cl P.2d 949 3. 6 Utah citing Co., § on Contracts 14 Utah 2d Corbin son v. Ford Motor *5 parties; comparison (c) saying: conduct be only we are not wrongdoers, innocence; guilt as between them to but deceivers and defaulters. them; equities (e) and (d) the between unnecessary is to establish bad upon parties pub- third or the effect precedents as propositions to both of the I lic. have stated above. It has potentially upon foregoing connec-
Reflection troublesome and unfair effect deciding problem aspects will tion with other important issue par- without giving the in all suggest likelihood ties an opportunity present evidence, to rely upon de- assert not to choose argue to and brief matter, and without good suf- illegality its and fense of own giving the trial an opportunity to important one is that An ficient reasons. rule thereon. particularly This seems un- the extensive having it created and used desirable because many there are so adver- ad- expensive plan promotion and tising promotion plans general of this to held out the inducement vertising, and character that ruling may have such many others) plaintiff presumably (and far-reaching effects business and by perform- accept the defendant’s offer commerce. ance, good sense of fairness its own Consequently I think it greatly to be asserting restrain it conscience would desired that the difficulties above referred as may committed any wrong have itself it by avoided adjudicating this case promises its refusing fulfill basis for upon the issues by framed pleadings thought I am public. With presented court, to the lower and as hearty If it is to be assumed accord. briefed and ap- to this court on it seems wrongdoer, is a the defendant peal. I therefore direct attention to the is- equity and principles of me discordant by sue raised the defendant: that there is accept whatever ben- permit it to justice to inducing per- no sup- may obtained reasonable basis in the evidence efits re- parties, and then port formance innocent judgment. preface the verdict and small wonder promise.4 It pudiate its support right thereto I reiterate nor relied company by jury approved by never asserted that the as often effect such a defense which court; and I do believe what said inherently illegality. 4. estopped Where the contract is not so its He should be evil or Apgar, immoral as to be malum se and do so. See Scott v. 238 La. against public policy, therefore it seems § So.2d see 17 Contracts C.J.S. why to me that there is no reason p. valid permitted urge its creator should be *6 458 law, is rule of verdict outside the is es- the departs It so well therefrom.
below patent mis- a jury a the has made clear that beyond question tablished as question of in its on of take determination latitude wide be allowed jury should duty fact, prerogative and the it is the fact both determining issues discretion respon- discharge its dispute. Nev- court in the the genuine is there authority supervisory sibility as that the illusion ertheless, be no should there process justice to charge freedom whole jurors unbridled allows simply such person correct errors. damages against one award and so finger points another because simple and plaintiff had to meet one duty their performance demands.5 obtain, present she requirement: basic that limitations conform within must cards and exhibit to the defendant rule of within justice, reason words, Hot required “Ride the recov- justify requires This law. One,” “legible.” is no evi- There in the evidence abe basis ery, must the cards dence when whatsoever credibility, that rea- least some of at word “hot” question were fairly minds, could acting thereon sonable legible. is that The contention recovery law- could upon which facts find plaintiff word had on two cards been predicated. fully be disappeared. It presented, it had but that by indisputably plainly is thus shown neither appreciated is to be exhibits, evidence, including the jury, submitting issues plaintiff requirement That failed to meet the themselves, infallible. are jurors of the defendant’s offer. Inasmuch as the need mistakes they make sometimes the observable rules of verdict inconsistent with recognized correcting facts, persuaded I am and incontrovertible for the correction allow procedure which necessary that this is situation where trial court mistakes of such motions, judgment be the verdict and corrected. post-trial granting certain the reversal. appeal. If I therefore trial, by this court on new (1917) ; 867, Co., statement Seybold and see 121 P. Pac. R.R. 869 v. Union 5. See Co., ; (1951) R.R. 174, Pac. 61, Stickle Union see 239 P.2d Utah 867, Watkins, 251 P.2d Utah Utah Russell v. also