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which we think worthy of serious consideration. One concerns the admission of hearsay testimony, and the other the sufficiency of the evidence to sustain the verdict of the jury.

The defendants demurred to the evidence offered by plaintiff. The demurrer was overruled with exceptions, and defendants rested their case. In addition to her own testimony, the plaintiff used as witnesses, Frank Owen and the defendants Keisel and Becker. The evidence may be summarized as follows:

The plaintiff testified that she and her husband for a number of years had been traveling from place to place, the business of her husband being that of preparing time-tables for railroad men, and incidentally procuring advertisements in connection with such time-tables; that they had been in Oklahoma City for a short time; that the plaintiff had something more than $260 of her own money, which she stated she had earned at dressmaking; that she furnished her husband at three separate times the following amounts: $50, $30, and $35-making a total of $115, which money was to be used by her husband in payment of doctor bills, printing, and other necessities; that shortly after furnishing her husband with this money her husband took from her trunk $140; that she did not miss the money at the time it was taken, taken, and did not know that her husband had taken the money until she found out that he had been gambling. She gave no competent testimony showing that her husband took the $140, and, so far as the record shows, the statement that her husband took the money was merely her opinion, based upon no actual knowledge of the taking. Her testimony shows that she had no actual knowledge of his gambling; the only information she had coming from statements of her husband and others. She testified that on one occasion he came to their room in the hotel, sat

down on a chair, and said: "I have lost all of my money;" that he threw down a lot of tickets, which tickets, over the objection of the defendants, were offered in evidence as Exhibits 1 to 39, inclusive. The court, on motion of the defendants, properly excluded the above statement of her husband in which he said that he had lost all of his money, as being hearsay. Two of the tickets introduced in evidence appear to be issued by a hotel, and have no connection with the matter in controversy. Exhibit 2, which is a fair sample of the form of the tickets urged to be material, reads as follows:

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Plaintiff testifies that, after the act of her husband in throwing down the tickets, she talked to the defendant Oates and told him that her husband had lost her money, and that her husband was not responsible more than half the time; that she asked Oates if he did not think he could give the money back, and that Oates refused to do so; that afterwards she talked to the defendant Keisel, and that he told her to talk to Becker; that Keisel said: "Well I guess that none of us are afraid of you. You do not need to think that any of us are running from you." She further testified that she asked Oates if he did not know Harry (meaning her husband) had lost some money there, and that Oates admitted that he knew him; that she further said to Oates; "You know that you and Mr. Keisel are running this place," and that Oates first said that Mr. Becker was running it, and she said: "Well, then, you are going to pay back this money of mine;" that Oates replied that they were not going to do anything at all, were not going to give back any money, and told her to go ahead and do what she could; that she told Oates the

(Okla., 167 Pac. 202.)

money was hers, and that Harry was not responsible all of the time, and Oates said that he did not see it that way, and for her to go ahead and do what she liked, they were not afraid of her. She further testified that Keisel arranged at one time to meet her at the Bristol Hotel and talk with her; that she waited two or three hours, and that Keisel did. not appear; that she talked to Keisel over the telephone, and he said: "Well, if Mr. Fitch lost his money, he was over twenty-one years old, and was able to take care of himself," and that he was not going to give any money back lost by a grown-up man, and that he further said that, if anyone had lost any money and was twenty-one years old and had gambled their money away, he was not going to have anything to do with it. She testified that she did not consent to her husband using the money in "playing the ponies," or gambling; that at one time she asked Oates if he did not know that Harry had lost some money there, and he said: "Yes; he knew that.'

The next witness introduced by the plaintiff was the defendant Keisel, who merely testified to the handwriting on the tickets introduced, and to some irrelevant matters concerning the ownership of the Bristol Hotel. He was not asked concerning any money bet or lost by Harry Fitch, and did not give testimony in such respect.

The plaintiff then introduced the deposition of Frank Owen, who testified that he was a cook, had been living in Oklahoma City, but was removing to Ardmore; that he knew Harry Fitch, had met him at the Stag Pool Hall, conducted by the defendants. He described the arrangements in the interior of the Fool hall, and testified that a turf exchange was operated there for the purpose of betting on horse races. He explained, to some extent, how such bets were made and the way the business was conducted; said that he had made and won bets there; that he had seen Harry Fitch

at one time put up his watch for $10 and bet on the races, and that tickets such as had been introduced in evidence were issued to those making the bets; that he had seen Fitch make bets about fifteen times, had seen him make three or four a day; that he had seen him there four days; that he did not know how much he had bet in those three or four days, except what Fitch told him that he lost. Over the objection of the defendants, the testimony of this witness was admitted by the trial court, to the effect that Fitch had told him that he had lost $20 one day and $50 another day; the defendants saving exceptions.

The next witness offered was the defendant Becker, who testified that the O. K. Brokerage & Commission Company sold pools on foreign races; that when they got returns on the foreign races they received a commission and they paid the bets of those who won; that Oates and Keisel were interested with him in the business, that he recognized Keisel's handwriting, and also that of Oates, on some of the tickets shown him, which had been introduced in evidence; that he had given Fitch at one time an advertisement to be placed in a book being prepared for the railroad men; that he had paid Fitch for the advertisement; that in the turf exchange conducted by defendants, on the presentation of a ticket by the holder, in case the holder won, the same was paid by defendants, but that tickets were not returned unless the holder won.

The foregoing is a substantial statement of the testimony in the most favorable light toward the plaintiff.

There is no competent evidence that Fitch ever received more than $115 of plaintiff's money. The fact that the plaintiff missed $140 from her trunk in a room at the hotel does not tend to prove her husband took the same. The plaintiff testifies she delivered to Fitch $115; hence, his receiving such sum may be considered as established by the

evidence and, if there is proof that any of such amount was lost by him in the gambling institution conducted by the defendants, the plaintiff would be entitled to recover from defendants to the extent of the amount so lost. It has been suggested by counsel in one of the briefs, by way of surmise, that the figures in parentheses on each of the tickets introduced in evidence may represent bets made in each particular instance. The tickets on their face do not purport to show any money bet or lost, and no testimony was introduced explaining their meaning. Assuming that they were admissible in evidence in the first instance, and that the experience of counsel is sufficient to give weight to the surmise ventured, we find the total sum of the parenthetical numbers to be 105. If, then, the possession of the tickets by Fitch shows that the bets were lost, as claimed by counsel for plaintiff, Fitch lost only $105. In order for plaintiff to recover this amount, there should be evidence tending to

show that the money lost belonged to plaintiff. We cannot speculate as to what the tickets represent. The courts do not take judicial notice of the meaning of signs and characters used by the gambling profession. The plaintiff called to the stand two of the defendants, who identified the tickets as those used in their business, but they were not asked to explain their meaning. Such proof should have been made. in some manner. In order for the

plaintiff to recover, Same-what it is necessary that must be proved. there be some evi

dence to show that Fitch


money belonging to the plaintiff, without her consent or connivance, by bets or wagers made on horse races in the turf exchange conducted by the defendants, and that the defendants received the money, either for themselves or their principal. There

Evidenceamount lost in gaming.

should also be evidence to show the amount lost.

There is no competent evidence in the record showing that Harry Fitch ever bet or lost any definite or even approximate sum of money, except $10 of his own, for which he pawned his watch. Oates admitted that Fitch lost some money, but there is no competent testimony as to what amount or to whom the money belonged. In the absence of evidence to the contrary, the presumption is that Fitch lost his own money.

It is apparent that there is not sufficient evidence to sustain the verdict for the amount awarded, and there is slight, if any, evidence to will not be necessary to pass upon support a verdict in any sum, but it this question, as this case must be reversed and a new trial ordered, because of error in the admission of testimony. The witness Owen testified that Fitch told him that he had lost $20 at one time, and $50 at admitting evianother. Proper ex


Appeal-error in dence-hearsay.

ons were reserved by defendant to the action of the court in admit

ting this testimony. We cannot conceive upon what theory the court admitted this purely hearsay evidence. We may add here that the policy of this court to disregard errors not prejudicial is not intended as a grant of license to trial courts to trample under foot and wholly disregard established procedure and rules of evidence, meant for the protection of all citizens alike.

The duty rests upon trial courts to conduct trials in accordance with law, and not to experiment as to how many rules may be violated without committing prejudicial error. The example of the wayward schoolboy, who attempts to gauge with precision just what infractions of discipline will be indulged by the teacher without invoking the rod of chastisement, ought not to be followed by trial courts. The evidence is not only incompetent, that its admission, in connection with the weakness of plaintiff's proof, is pre

(— Okla. —, 167 Pac. 202.)

judicial. The undisputed evidence in this case shows that the defendants were engaged in an immoral and unlawful business, which should be suppressed. The law provides ample means to suppress the business and punish the culprits. We would not discharge our duty if we permitted any citizen, even a gamb

ler, to be deprived of property except in a manner authorized by law.

The judgment of the trial court is reversed, with instructions to grant the defendants a new trial and proceed otherwise in a manner not inconsistent with this opinion. 'Per Curiam: Adopted in whole.


Right of owner to recover his money gambled away by another without authority.

Cases of dealing in futures and with bucket shops are not included.

The owner may recover from the winner, money which has been lost in gambling by his agent, employee, or servant, without authority. Clarke v. Johnson (1774) Lofft, 756, 1 Cowp. pt. 1, p. 197, 98 Eng. Reprint, 903, 1041; Ramirez v. Main (1907) 11 Ariz. 43, 89 Pac. 508; Pierson v. Fuhrmann (1891) 1 Colo. App. 187, 27 Pac. 1015; Lacey v. Bentley (1907) 39 Colo. 449, 89 Pac. 789; McAllister v. Oberne (1891) 42 Ill. App. 287; Causidiere v. Beers (1865) 1 Abb. App. Dec. (N. Y.) 333; Conway.v. Conway (1893) 4 Misc. 312, 24 N. Y. Supp. 261; Thompson v. Hynds (1897) 15 Utah, 389, 49 Pac. 293; Burnham v. Fisher (1853) 25 Vt. 514.

It will be seen that this principle is fully sustained in the reported case (BECKER V. FITCH, ante, 340), where a judgment for the plaintiff was reversed on other grounds.

Corner v. Pendleton (1855) 8 Md. 337, an action by employers to recover money alleged to have been gambled away by their clerk, failed for want of proof.

As a wife has a common-law right of action against the winner, when her husband gambles away her money without authority, the state in such case may not sue, under a statute providing that in case the loser of money does not sue to recover it of the winner in six months, then the state may sue for the benefit of the wife and minor children of the loser. Ervin v. State (1897) 150 Ind. 332, 48 N. E. 249.

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A husband, having bet property of his wife, informed her that he had sold it, and she made a deed, which he deposited with the stakeholder. The wife, learning of the bet, demanded back the deed from the stakeholder, but he nevertheless delivered it, taking security from the winner, who immediately conveyed it to a bona fide purchaser. It was held that the winner and the stakeholder were both liable to the wife for the amount of her loss. Pollock v. Agner (1895) 54 Kan. 618, 38 Pac. 781.

Where one member of a firm, without authority, loses the property of the firm in a bet, all the partners may, by suit, recover its value of the winner. Cannon v. Chaney (1894) 8 Ohio C. C. 143, 4 Ohio C. D. 335.

Where a carrier, taking a package of money for transportation, gambled away the identical bills, an action for money had and received was sustained by the shipper against the winner. The court referred to the Massachusetts statute, enabling the loser to recover within three months, or any other person double that amount, without any limitation of time. Mason v. Waite (1822) 17 Mass. 560.

An employer's right of recovery from the winner of money lost by his clerk in gambling, without authority, includes money so lost, which was borrowed by the clerk on his employer's credit, he having authority to borrow on such credit. Burnham v. Fisher (1853) 25 Vt. 514.

The master may recover notes and cash of his, paid by his servant to

the defendant for chances in a prohibited lottery. Clarke v. Johnson (1774) Lofft, 756, 1 Cowp. pt. 1, p. 197, 98 Eng. Reprint, 903, 1041.

A principal's action for money had and received, against his agent and the winner of the principal's money, lost by the agent at betting or gambling, without authority, lies at common law, and need not be brought under the statute. Conway v. Conway (1893) 4 Misc. 312, 24 N. Y. Supp. 261.

"One who receives the money of another from a third person, by winning it at a game of chance played with such third person, is liable to the owner in an action for money had and received, and the right of action does not rest upon the statute, but upon the common law." Smith v. Ray (1892) 89 Ga. 838, 16 S. E. 90.

The principal may recover his money, drawn by checks of his agent, who, without authority, gave them in payment of gambling losses or for gambling stakes. McAllister Oberne (1891) 42 Ill. App. 287.


In Western Nat. Bank v. State Bank (1902) 18 Colo. App. 128, 70 Pac. 439, where a wife gave her husband money to deposit for her, and he took a certificate of deposit for it in his own name, apparently without authority, and gambled it away, it was held that his indorsement of the certificate was a nullity, and the certificate remained her property, although, after she had demanded it of the keepers of the gambling house where it was lost, they sold it to an innocent purchaser for value.

In Murray v. Aull (1910) 47 Colo. 542, 107 Pac. 1068, 1120, where a wife deposited money with her husband for safe-keeping, and he deposited it in a bank in his own name, and subsequently, in settlement of his losses in a gambling game conducted by a third person in defendants' saloon, drew a check thereon to the order of the defendants, who cashed it and delivered the proceeds to the winner, knowing the purpose for which the check was given, it was held that she could recover the amount from them.

But a recovery was denied in

Oberne v. Bunn (1891) 39 Ill. App. 122, where the plaintiffs, without knowledge of its consideration, paid a draft which their agent had drawn upon them to the order of defendant, in payment of gambling losses, the defendant being a mere accommodation payee and having paid the money which he collected on the draft to sev eral persons designated by the agent, receiving no benefit therefrom himself, it not appearing that he knew that the draft was drawn on funds not belonging to the drawer, although he did know the purpose for which it was given. The court distinguished McAllister v. Oberne (Ill.) supra, upon the ground that in that case appellant had notice by the check that it was, in fact, drawn upon funds belonging to appellees, it having been drawn in their name.

It was held in Gilpin v. Daly (1890) 24 Abb. N. C. 216, 11 N. Y. Supp. 6, that the allegation in such an action is proper, that the money of the employer lost by its employee at games of chance was so lost at gambling houses belonging to the defendants.

It was held in The Carrie Converse v. Fritig (1875) 27 La. Ann. 117, that no cause of action was stated by a petition declaring upon an indebtedness, and alleging that a certain employee of the plaintiffs unlawfully took their money and went with it to the defendants' gambling house, where, by means of persuasions and inducements, and by plying him with liquor, they induced him to gamble and bet against a banking game in their house, called faro, and that, by unlawful devices and tricks, they got possession and control of this money. The court observed that the plaintiffs were not seeking to recover a specific piece of property, which they alleged to have been unlawfully taken from them and found in possession of defendants, but that the petition declared upon an indebtedness.

It was held in Grant v. Owens (1891) 55 Ark. 49, 17 S. W. 338, that a postmaster could not recover from a licensed dramshop keeper, money embezzled by the assistant postmaster and lost in play at the dramshop,

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