delivered the opinion of the court:
Section 132 of chapter 38 of Hurd’s Revised Statutes of 1901 reads as follows: “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, or by any wager or bet upon any race, fight, pastime, sport, lot, chance, casualty, election or unknown or contingent event whatever, 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, 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. In any such action at law it shall be sufficient for the plaintiff to declare generally as in actions of debt or assumpsit for money had and received by the defendant to the plaintiff’s use, or as in actions of replevin or trover upon a supposed finding- and the detaining or converting the property of the plaintiff to the use of the defendant, whereby an action hath accrued to the plaintiff according to the form of this act, without setting forth the special matter.”
This suit is to recover money lost at draw poker. The declaration is an ordinary declaration in assumpsit, and does not refer in apt language, as it should do, to the act of which said section is a part, for the purpose of showing that it counts thereon. At the close of the evidence for White, the plaintiff, Zellers, the defendant, moved the court to instruct the jury to find a verdict for the defendant, and it is now stated that one of the grounds was a variance between the pleadings and the proof resulting from this omission in the declaration. The motion was not in writing. At the time of making it, counsel tendered an instruction in the following words: “The court instructs the jury that the plaintiff has failed to show by any evidence that he played cards with defendant on the 31st day of October or 1st day of November, 1901, or that he lost money to defendant on those days in the playing of cards, and you will therefore return the following verdict: ‘We, the jury, find for defendant; no cause of action.’” As the motion itself did not specify any ground upon which it was based, and as the instruction offered in connection therewith does show the ground upon which the defendant sought to have the jury instructed in his favor, the defendant can not now be heard to urge that the motion was based upon the failure of allegata et probata to agree.
A variance between the averments of the declaration and the proof, which is the ground of a motion to instruct the jury to find for defendant at the close of the plaintiff’s evidence, must be particularly specified in the motion. Probst Construction Co. v. Foley,
We .will therefore not consider the error assigned in this regard. Had this matter been properly called to the attention of the court, the declaration could, and no doubt would, have been amended and the objection obviated.
Again at the close of all the evidence the defendant moved the court to instruct the jury for the defendant, and it is now urged that there is in the record no evidence which tends to support the verdict. It appears from the evidence of plaintiff, which, for the purposes of this motion, must be taken as true, that he began playing draw poker at about 10 P. M. and continued until about 5 A. M. the next morning; that among those playing were Prank Downey and Chester Kaiser, who were in Zellers’ employ and playing for him; that plaintiff lost during the time $80 and that Downey and Kaiser won a little over $100, which was made up of the $80 lost by plaintiff and small amounts lost by others. The money lost by plaintiff was not all lost on any one hand, nor, in the first instance, was it all won by either Downey or Kaiser. Some portions of his losses passed to other persons in the game temporarily, and finally from them to the agents of Zellers, so that in the end they were the only winners and had won an amount in excess of the losses of the plaintiff. The game was not played by betting money directly. Chips were purchased from Zellers, or “the house,” as the witnesses expressed it, and at the end of the game or sitting, if the purchaser by any chance had any of the chips left or if they had been won by persons other than Zellers’ agents, the house redeemed them, paying for each the price for which it had been sold.
It is first urged that as Zellers, in person, did not play in the game there can be no recovery from him. We think this too narrow a construction of the statute. It appears from the evidence that in his gambling room roulette was also played. If the position of counsel be correct and Zellers employed an insolvent individual to operate the wheel for him, as a result of which the wheel or the operator won.the money of the player for Zellers as the proprietor, the player would be unable to recover from the winner. The proposition carries with it its own answer. What Zellers did by another in this instance he did by himself, and he is responsible for the money won for him by such other. Plaintiff could sue the agent or the principal, at his election.
Plaintiff in error relies upon the case, of Kruse v. Kennett,
It is then said that because that which was actually staked on the game was the chips, and there is no evidence in this record that they had any intrinsic value, there is no evidence of the loss of “money or other valuable thing, amounting in the whole to the sum of §10.” The correct view is that the chips were merely markers to indicate the amount of the money lost or won, the money itself being actually deposited with the gaming-house keeper as a stakeholder, to be paid by him to the owner thereof as such owner was indicated by the possession of the chips which the keeper had given in exchange therefor, and that the loss of the chips was a loss of the money which they represented.
Attention is then called to the fact that many hands of draw poker were played,—one every two minutes, according to the statement of the defendant,-—during the hours the plaintiff was engaged in play, and that each hand is a game, and that in each hand the plaintiff would win or lose; that when he lost and that hand was played the transaction was ended; and the person to whom that loss was paid, it is urged, is the only person from whom such loss could be recovered, and that the plaintiff could not recover money which he had so lost to some person other than the defendant’s agents, because, in the end, such agents won the money from such other person who had in the first instance won it from the plaintiff. Counsel urge that a strict construction of the statute leads to this conclusion, and authorities are cited in support of the doctrine that penal statutes should be strictly construed. This is the general rule, but it is only one of the rules to be applied in determining the meaning of an enactment of that character. In Hamer v. People,
Keeping in view the wrong at which the statute is aimed, and giving consideration to the use of the word “sitting,” in this section, we think the proper construction is, that all that transpires in playing the game of draw poker from the time certain players begin playing together on any one occasion until they cease playing together on that occasion, no matter how many hands are played, may be regarded as one transaction or “sitting," and that all those who have won more than they have lost during the sitting are “winners" and all those who have lost more than they have won during the sitting are persons “losing,” within the meaning of the statute; that all money or other valuable thing staked upon the game at any time during the sitting is to be regarded as in play so long as the sitting continues, and that the liability of the winner to the person or persons losing is measured by the net amount of his own winnings. Resort may be had to equity where necessary for the purpose of making proper adjustments between the various winners and the various losers.
It is also claimed that there was a variance between the proof fixing the date when the gambling occurred and the bill of particulars filed with the declaration. We do not regard the statement of the date in this bill of particulars as material. It does not appear that plaintiff ever played in defendant’s gaming room except on this occasion. There are cases where the court below may, on motion, properly require the plaintiff to particularly identify, by date or otherwise, in his statement of account, the transaction or transactions on which he relies, and the plaintiff may be required to confine his proof, to transactions so identified. Such a case was not here presented.
We think the rulings upon the admissibility of evidence correct.
What we have said disposes of objections to the action of the court in passing on instructions except as to instruction No. 4 given on the part of the plaintiff, which contains this language: “No winning of the plaintiff can be set off against his demand for loss in this suit unless obtained from the defendant at the same sitting.” The objection to this instruction is, that the. word “defendant” should have been followed by the words “or his agent or agents.” There is no question of any set-off on account of winnings in the case. Plaintiff only sought to recover the net amount of his losses. Defendant did not offer evidence of any winnings that should have been deducted or set off. The error in the instruction, if any, was harmless.
The judgment of the Appellate Court will be affirmed.
Judgment affiriW-ed,