158 N.E. 498 | Ohio Ct. App. | 1926
The plaintiff in error, Lulu E. McGill, plaintiff below, brought an action against the defendants in error to recover from them the sum of $4,682, and $500 exemplary damages, by reason of money claimed to have been lost by gambling by her husband, George H. McGill. The petition alleges that the defendants Worland and Belpash operated a place used for gambling purposes on and from the 1st day of August, 1924, continuously, to and including the 1st day of June, 1925, and that during that time the said George H. McGill, husband of plaintiff, expended the sum of $4,682 in schemes of gambling at the place mentioned in the petition; that the defendant, the C.E.S. Realty Company was the owner of the premises upon which the gambling was permitted; and that it knowingly permitted said place to be so kept and to be used for gambling purposes for a long time prior to and at the times mentioned. Plaintiff's petition was filed August 26, 1925. To the petition demurrers were filed by each of the defendants on the ground that the petition did not state facts sufficient to constitute a cause of action, and that the petition was not filed within the time limited by law. These demurrers were sustained and the petition dismissed by the trial court. Error is now prosecuted to this court to reverse that judgment.
This action is brought under Section 5967, General Code, which provides that a suit may be brought and a recovery had from the person receiving such money, together with exemplary damages therefor, by a person who expends or loses money by gambling, and as otherwise mentioned in said section, or that the suit may be brought and maintained by a person depending for support upon *299 or entitled to the earnings of such person, or by a citizen for the use of the person so interested, as set forth in said section.
Section 5966, General Code, provides that the suit must be brought within six months after such loss and payment or delivery of the money lost at gambling by the person playing the game, or who by bet or wager loses to another money or other thing of value. Section 5969, General Code, provides that if the one playing the game, or who loses money or anything of value by reason of gambling, does not prosecute within six months, any person may sue for and recover it, "for the use of such person prosecuting such suit." It is now contended that, inasmuch as this suit was not brought within the six months period, by the party who it is claimed lost the money, no action can be maintained, and that the same is barred by the statute of limitations. Section 5967, General Code, which was formerly Section 4271 of the Revised Statutes, and under which this action was brought, does not mention any time within which the action shall be brought. It is therefore contended by the defendants in error that Section 5967 of the General Code should be construed to mean that, even though the action be brought by a person other than the one who lost, it must be brought within the six months period. Without going into a lengthy discussion of the history of legislation on the gaming statutes, we are of the opinion that under a liberal construction of these three sections of the statutes, which must necessarily be read together, no such limitation can be put on Section 5967 as would bar a suit on the part of plaintiff herein by reason of her failure to bring the suit within six months. *300
It has been held that in actions by a third party the petition need not contain the exact date or dates at which the money was lost, if it contains the dates between which it was lost; nor is it necessary to state of what the gaming consisted. This being true, it is very apparent, if the contention of defendants in error be correct, that, where games continued for some length of time and it was impossible to state in the petition the exact dates upon which the gaming occurred and the money was lost, the party might be barred as to some of the amounts lost, by reason of the six months period; and as to other amounts it might be urged that the suit was prematurely brought by reason of the fact that Section 5966 provides that the loser must bring his action within six months after such loss and payment or delivery. It is therefore very apparent that it would be impossible to recover for some of the money lost on some one or other of the dates on which the gambling occurred. We are of the opinion that Section 5967 was not only an attempt to, but did, remedy this situation, and that the section, properly construed, gives a right of action to a party other than the one who lost by reason of gambling.
It must be admitted that the petition is not skillfully drawn. We think, however, that the omission of certain words, and the insertion of others, which are obvious in the petition, are clerical errors; that under the Code, which provides for a liberal construction of pleadings, the petition states a cause of action. While the petition may well have been assailed by motion, we hold it good as against demurrer.
The judgment will therefore be reversed, with instructions *301 to overrule the demurrers, and for further proceedings.
Judgment reversed and cause remanded for further proceedings.
RICHARDS and WILLIAMS, JJ., concur.
