
    Worland et al. v. McGill.
    
      Gambling — Action by wife to recover husband’s losses — Evidence — Husband’s book entries made upon returning home inadmissible as book of account — Privileged communica- , tions — Section 11494, General Code — Wife’s testimony as to husband’s acts incompetent, when — Wife’s testimony identifying husband’s handwriting competent — Entries in gambling account book incompetent, when — Wife entitled to lien on property, but not personal judgment against owner — “Evidence” and “testimony,” distinguished — Measure of damages — Winnings not deductible from losses, and exemplary damages recoverable — Section 5967, General Code.
    
    1. Book entries made by gambler every evening after his return home, and purporting to show his gains and losses, held not admissible, as book of account, under s'hopbook rule, because not made in ordinary course of business, or under such circumstances as to make them admissible under that rule.
    2. Testimony of wife as to acts of husband in her presence and not in known presence of a third person competent to be a witness held inadmissible, under Section 11494, paragraph 3, General Code.
    3. Wife might testify as to whether writing in alleged book of account of husband was in his handwriting without violating Section 11494, paragraph 3, General Code, providing that wife shall not testify concerning communication by husband to her, etc.
    4. Entries' in alleged book of account of gambler purporting to show his gains and losses held inadmissible, where there was no competent evidence as to when, where, or how entries were made.
    5. Wife, suing for losses of husband at gambling, held not entitled to personal judgment against owner of gambling house, having knowledge of its use for gambling, but only to a lien against the premises, under Section 5971, General Code.
    
      6. Word “evidence” as used in charge to jury is broader than word “testimony,” and includes exhibits, while word “testimony” does not include them.
    7. Measure of wife’s recovery for losses of husband at gambling, under Section 5967, General Code, held money expended by him and received by persons' conducting gambling schemes, together with exemplary damages, within limits provided by the statute.
    (Decided June 20, 1927.)
    Error: Court of Appeals for Lucas county.
    
      Messrs. Lawton & Saalfield and Mr. D. J. O’Rourke, for plaintiffs in error.
    
      Messrs. Fritsche, Kruse $ Winchester, for defendant in error.
   Williams, J.

Lulu E. McGill, as plaintiff, began an action in the court of common pleas of this county against Thomas C. Worland, Walter Belpash, and the C. E. S. Realty Company, as defendants, to recover money alleged to have been expended in a scheme of gambling. The court below held that the petition did not state a cause of action and sustained the demurrer thereto. Plaintiff not desiring to plead further, the court entered final judgment. Error was prosecuted to this court. This court was of the opinion that the petition stated a cause of action under Section 5967, General Code, and reversed the judgment, with instructions to overrule the demurrer, and remanded the cause for further proceedings. 25 Ohio App., 297, 158 N. E., 498.

■ After the cause was remanded to the court below, the defendants Thomas O. Worland and Walter Belpash filed a joint answer, and the defendant the C. E. S. Realty Company filed a separate answer. Each of these pleadings was, in substance, a general denial of the allegations of the petition. Upon trial of the cause before a jury it was a conceded fact that the defendants Thomas O. Worland and Walter Belpash were engaged in operating a gambling house at 509 Summit street, Toledo, during part of the time between August 1, 1924, and June 1, 1925, and that the defendant the O. E. S. Realty Company was the owner of the premises in question and had knowledge of the use thereof for such purpose. There was evidence tending to show that the plaintiff was the wife of George H. McGill, and depended upon him for support, and that plaintiff’s husband actually visited the gambling house at the address named and participated in schemes of gambling.

The husband did not testify, and, although a subpoena was issued for him, he could not be located at the time of the trial. Plaintiff, to show the amount her husband expended in gambling, offered in evidence a book which purported to contain his winnings and losses at various gambling places, including the one involved. The court admitted it in evidence and charged the jury respecting it. Exceptions were taken by the defendants. As the basis for the introduction of this book in evidence, plaintiff testified that during the time covered by the petition she and her husband resided in Maumee, Ohio, distant about ten miles from Toledo, that she frequently followed him during that time to 509 Summit street, and that she saw him make the entries in the book “every evening” after his return to his home in Maumee. An examination of the book discloses that the items are large in amount and it is inferable that each item covers several transactions. This is indicative of the fact that the entries were not made contemporaneously or substantially contemporaneously with the transactions. The only principle upon which the book would be admissible wouid be as a book account under the shopbook rule. Some cases hold that where money charges are made, in the banking business, or otherwise, as a matter of fact, in the ordinary course of business, the accounts of the' party making the charges are admissible under the shopbook rule. 22 Corpus Juris, 878, Section 1063. We are of the opinion, however, that the entries in question were not made in the ordinary course of business, or under such circumstances as to make them admissible in evidence under such rule. We do not hold, however, that the husband, if called as a witness, could not use the book to refresh his recollection, if it should so refresh it. It also appears that the only evidence in the record tending to show when and where and how the entries in the book were made was testimony of the wife regarding acts done by the husband in the presence of the wife and not in the known presence of a third person competent to be a witness. Under the provisions of paragraph 3 of Section 11494, General Code, such evidence would be incompetent. Dick, Ex’x., v. Hyer, 94 Ohio St., 351, 114 N. E., 251. Of course the wife could testify as to whether the writing in the book was or was not the handwriting of her husband. Holtz v. Dick, 42 Ohio St., 23, 51 Am. Rep., 791. Eliminating the incompetent evidence as to the book and the entries therein, such entries would not be admissible in evidence upon any theory. It was, therefore, reversible error to admit the book in evidence and to charge the jury that it could be considered as evidence.

It appears from the transcript that the verdict was rendered in favor of the plaintiff in the sum of $3,500. The verdict, however, makes no reference to any defendant. Judgment was entered in the court below in favor of the plaintiff and against all of the defendants in the sum of $3,500. We are of the opinion that under Section 5971, General Code, the plaintiff is not entitled to recover a money judgment against the defendant, the C. E. S. Realty Company, and that the court had power only to adjudge the amount of the recovery to be a lien upon the premises described in the petition, and to make proper orders to sell the premises to satisfy the lien.

In the charge the word “testimony” is used where the word “evidence” should be used. “Evidence” is the broader term and would include the exhibits, while the word “testimony” would not include them.

In laying down the rule for measuring the amount of recovery, the language employed in the charge refers to the money expended in the gambling transactions as damages, and also states that the jury should “consider what sums, if any, were won by George H. McGill in schemes of gambling.” We call attention to the fact that under Section 5967, General Code, the measure of the amount of recovery in the instant case is the money expended by the person gambling and received by the person or persons conducting the gambling scheme, together with exemplary damages, the latter to be limited, however, as therein provided. Vincent v. Taylor, 60 Ohio St., 309, 54 N. E., 264.

We find no other reversible error apparent upon the face of the record.

For the reasons indicated, the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed.

Richards and Lloyd, JJ., concur.  