Opinion
Submitted on brief December 17, 1929
Affirmed May 1, 1930
Appeal from Circuit Court, Lane County, G.F. SKIPWORTH, Judge.
Action by B.A. Johnson against W.W. McDonald. From a judgment for plaintiff, defendant appeals.
AFFIRMED.
Donald Young of Eugene for appellant.
Immel Evans of Eugene for respondent.
In Banc.
This is an appeal from a judgment in favor of plaintiff against defendant. Plaintiff sold and delivered to defendant certain merchandise for the agreed price of $300. The merchandise consisted of certain devices designated Advertoshare Problem Checkerboards. Defendant admits the purchase of the merchandise and defends only on the ground that the merchandise consists of a gambling or lottery device for gift prizes and is a game of chance. Defendant is willing to pay for the merchandise if it is a legitimate article of commerce and trade in the state of Oregon. There is no controversy regarding the pleadings or the contract of sale. The device is best described in the directions for its use:
"`The Advertoshare Problem Checkerboard is one of skill only, and therefore does not violate any of the laws against the awarding of prizes by lot or chance.
"`The problems on the board are endings of checker games partly played out. The way to find what problem you are to solve is to punch the board and the ticket you get out of the hole will have a name upon it which is the name of a certain set up of checkers, for example, CURVE. Look at the reverse side of the board, and among the list of problems you will find the problem curve. Following the name you will get the set up, namely, a black checker on 3 and a black king on 5; white checkers on 11 and 13. Having thus set up your problem, you are to move the black checkers first and win over the white checkers, the customer moves both the black and white checkers.
"`There are an equal number of all problems on the board; for instance, there are 10 problems on the 1000-hole board, each problem numbering from 1 to 100. In each hole there is a slip of paper having a name and a number upon it. The name is the name of one of the checker problems listed upon the board, and the number is used for the identification of solutions only.
"`It is optional with the merchant to arrange prizes for the correct solution of checker problems. If the customer obtains a correct solution of the checker problem within a given time, he will receive a box of candy or other prize that has been arranged previously.
"`If the customer fails to obtain a correct solution within a given time, he receives no prize, but he may take the problem home, solve it, and present a record of his solution, which solution shall be considered in competition with other solutions of the same problem returned in a like manner, and first, second and third prizes awarded for the best, second best, and third best solutions, and in case of a tie, neatness of presentation of solution would be the deciding factor. BEST 1, 2, 3, 4, 5, 6, etc. VENUS: Means that we are giving six prizes for the best six solutions of the problem VENUS, etc. On all problems the least number of moves is considered the best solution.
"`We recommend its operation on the above described plan purely as a stimulant to your business and the amusement of your customers.'"
We are of the opinion that the case of Quatsoe v. Eggleston, 42 Or. 315 ( 71 P. 66), is decisive of this case. From page 320 of the official report we quote:
"There cannot, therefore, be a lottery without this element of uncertainty or chance. If the power of reason or will is exercised upon the selection, then there is no lottery."
It will be seen from the directions that the prize is drawn not by chance but as a reward for the skill of the person claiming the prize. If there is any element of chance at all about the device it is in the drawing of the problem. Any problem drawn requires the solution of the game of checkers presented by that particular problem. From the directions given with the Advertoshare Problem Checkerboards we learn that the problem is the completion of a game of checkers that has been partially played. The device was invented by a famous checker player. So far as it is humanly possible, the several problems are of equal difficulty. No distribution of prizes is made by chance or lot. Gambling does not have any place in the game as it is intended to be played. The prizes offered are trivial and do not offer any inducement for one to purchase an opportunity to play the game.
There is no more resemblance to a lottery in the scheme than there is in a game of billiards or of cards where such games are played in a public place and charges are made for the privilege of using the billiard tables or card tables. The predominant element in the game is one of skill. The game would not appeal to any one who did not like to play checkers. There is no apparent likelihood at all that the game, if played as designed, would cultivate a spirit of gambling.
Appellant relies on the case of National Thrift Ass'n v. Crews, 116 Or. 352, 355 ( 241 P. 72, 41 A.L.R. 1481). The facts are different in that case from the case at bar. There an element of chance, though expressed in a voting scheme, predominated. The court held in the National Thrift Ass'n case that the voting plan was a subterfuge and intended to cover up the lottery that was the principal element in awarding prizes.
The identical device involved in the case at bar was held legal in the following case: D'Orio v. Startup Candy Co. (Utah), 266 P. 1037, 60 A.L.R. 338; D'Orio v. Jacobs, 151 Wn. 297 ( 275 P. 563). The game in the instant case does not come within the meaning of a lottery or game of chance as defined in textbooks: 27 C.J. 968, §§ 4, 7; 13 C.J. 410-412, §§ 339-341; 12 R.C.L. 716. See also National Sales Co. v. Manciet, 83 Or. 34 ( 162 P. 1055, L.R.A. 1917D, 485).
Attorney for respondent covers the case thoroughly in the following language:
"As to the second suggested use, the only element of chance in this phase of the operation is that a more skillful player than himself happened to draw the same problem who solved it and won the prize. However, it must be borne in mind that the element which defeated the customer was his lack of ability, and his lack of skill, and not the element of chance. It can not be said that the fact that he drew a problem which he could not solve was contributed to by chance for the reason that all of the problems are capable of solution, and equally difficult; consequently, the presumption is that if he can solve one of them with his knowledge of checkers, he should be able to solve them all. If his solution should require a greater number of moves than the solution of a competing customer, that fact can only be attributed to the greater skill of the winning customer. In this connection, it must at all times be borne in mind that in offering solutions in competition with the solutions of other customers, that there is no competition between the players of different problems. In other words, each customer entering the contest and drawing the problem "Curve" will compete only with the other customers who draw this same problem."
The judgment is affirmed.
McBRIDE, J., absent.
ROSSMAN, J., dissents.