Miller v. Chicago & Northwestern Railway Co.

153 Wis. 431 | Wis. | 1913

Barnes, J.

There is no claim on the part of either party that the machine in question was not a gambling device or that its use was not prohibited by secs. 4529 and 4531, Stats. Neither is there any claim that the machine was usable for any lawful purpose.

The judgment cannot stand unless the court holds that where 'an article is not usable and has no value for lawful purposes the right exists to recover for its value based on its use and usability for an unlawful purpose.

This question suggests some others that might arise: If a counterfeiter employed an engraver to make plates to be used in making counterfeit money and the plates were lost in the process of transportation or converted by some other party, could the cost price or their value for the unlawful use to which they were intended to be put be recovered ? The same question might arise over a kit of burglar’s tools valuable for the purpose of committing burglary, but having no particular value for any legitimate use. It is true that burglary and counterfeiting were offenses at common law while gambling was not. But no very good reason is apparent why the principle which would govern the eases assumed for the purpose of illustration would not apply to the actual case before the court.

The circuit judge decided the case on the authority of Gulf, C. & S. F. R. Co. v. Johnson (Tex.) 25 S. W. 1015. The case fully sustains the conclusion reached. It seems to be based on Coolidge v. Choate, 11 Met. 79. In the latter case the property involved was game-cocks. No attempt was made to recover on the basis of their value as fighting machines. Recovery was allowed on the theory that they had a market value when used for a lawful purpose. The same rule would apply to a pack of cards. We do not think the Massachusetts case passes upon the question decided in the Texas case. While the Texas case can be said to be directly in point, we think it was not correctly decided, and that the true principle upon which the decision should rest in the case under consideration is quite well established in this court and elsewhere.

The case of Davelaar v. Milwaukee, 123 Wis. 413, 101 N. W. 361, was brought to recover damages for negligently flooding a brick yard. There was evidence which tended to show that the plaintiff was a member of a combination formed to restrain trade. The court said: “If plaintiffs maintained ownership in an unlawful association.... no damages for loss of business could be allowed them.”

In Raynor v. Valentin Blatz B. Co. 100 Wis. 414, 76 N. W. 343, it was held that a tenant who was unlawfully evicted could not recover as part of his damages the profits which might be derived from the sale of liquor on Sunday.

Haggerty v. St. Louis I. M. & S. Co. 143 Mo. 238, 44 S. W. 1114, 40 L. R. A. 151, was an action brought to recover several thousand dollars damages because the defendant negligently permitted game placed in cold storage during the closed season in violation of law to be destroyed. Recovery was denied. It was said that the law will not stultify itself by promoting on the one hand what it prohibits on the other, and will leave the parties where it finds them, unsanctioned by its favor and unaided by its process.

In Oviatt v. Pond, 29 Conn. 479, it was held that liquors kept for sale contrary to law are regarded by the law as having no lawful value or value for lawful purposes.

In Crigler v. Shepler, 79 Kan. 834, 101 Pac. 619, it was held that a person employed in a prohibition state to sell liquor contrary to law could not recover on his contract of hire.

Other cases, of like tenor are People v. Adams, 176 N. Y. 351, 68 N. E. 636; Collins v. Lean, 68 Cal. 284, 9 Pac. 173; Frost v. People, 193 Ill. 635, 61 N. E. 1054; Mullen v. Mosely, 13 Idaho, 457, 90 Pac. 986, 12 L. R. A. n. s. 394; Board of Police Comm’rs v. Wagner, 93 Md. 182, 48 Atl. 455, 52 L. R. A. 775.

We do not wish to be understood as indorsing all that is said in the cases cited. What we do hold is that, where an article is useful'and usable for gambling purposes only and gambling is unlawful and it is not shown that the article has any value except for use 'as a gambling device, courts will not regard such value as a legitimate measure of damages to be recovered where the article is destroyed. And where the implement has no value for any lawful purpose no damages in a case of this kind are recoverable. We think this rule is fairly within the principle of the decisions cited and that it is in the line of good morals and sound public policy. The conclusion reached renders it unnecessary to discuss other questions raised in the case. The court should have directed a verdict for the defendant.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment dismissing the complaint.