
    CASE 2. — ACTION BY PARK ROBERTS AGAINST J. B. RESPASS AND OTHERS TO RECOVER MONEY LOST IN A POKER GAME CONDUCTED BY DEFENDANTS.
    December 15.
    Roberts v. Respass, &c.
    Appeal from Kenton Circuit Court.
    W. McD. Shaw, Circuit Judge.
    Judgment for defendants, plaintiff appeals
    Reversed.
    1. Trial — Taking Case From Jury — Credibility of Witnesses. — In an action against three persons as partners, plaintiff testified as to .statements made by all three of the defendants, and was not contradicted as to the statements made by two of t-bem, but was contradicted as to the statements made by the third- defendant. Held, that the evidence was sufficient to raise the issue of the credibility of the witnesses, and therefore it was proper to refuse to- give a peremptory instruction in plaintiffs’ favoir against the two defendants making the uncontradicted statements:
    2. Gaming — Remedies of Parties — Pleading.—In an action to recover money lost at gambling, the petition stated that defendants were proprietors of the place where the game was carried on, and that they persuaded plaintiff to. visit their place, land that he lost a stated amount by playing poker in such place. Held, that it was immaterial whether the game was fairly played, and therefore evidence of its unfairness was properly excluded.
    3. Courts — Records—Amendment—Nunc Pro Tunc. — In an action •against a number of person®, it was agreed before trial that the allegations of the petition as to two of the defendants who had not answered should he traversed of record, but by oversight this was not done at the time. Held, that the court after the trial could enter an order nunc pro tunc making the record conform to the agreement previously made.
    
      4. Gaming — Remedies of Parties1 — Instructions—“Inviting, Persuading, or Inducing.” — In am action to recover money lost in playing poker, the court instructed that if defendants invited or otherwise induced plaintiff to visit their place, and that a poker game was being carried on by defendants, ,amd that while playing said game plaintiff lost at any time and within 24 hours $5 or more, a verdict should be returned for the amount of plaintiff’s losses not exceeding the sum sued for, and that by “inviting” or “inducing” is not meant merely personal application to the person invited, but any conduct that induces such person to visit such place. Plaintiff requested an instruction that by “ ‘inviting, persuading, or inducing,’ is not meant that personal application be made to such person visiting such place, but the mere setting up and furnishing such a place to carry on a game of chance is sufficient invitation.” Held, that it was error to refuse this instruction.
    A. E. STRICKLETT for appellant.
    CLASSIFICATION OF AUTHORITIES.
    1. The court was without power to make the nunc pro tunc order traversing the petition of record. Records or orders cannot be supplied from the memory of the court, or its officers. (Lynch v. Reynolds, 6 Bush 574, and authority cited.)
    2. Uncontroverted facts may be properly assumed in an instruction. (L. & N. R. R. Co. v. Earl’s Admr., 94 Ky. 374; Henning v. Stevenson, &c., 26 Ky. Law Rep. 162.)
    3. There being mo issue tendered in the pleadings, appellant was entitled to a judgment regardless of the evidence or the verdict. (L. & N. R. R. Co. v. Paynter’s Admr., 25 Ky. Law Rep., and authorities cited; Schulte v. L. & N. R. R. Co., 23 Ky. Law Rep. 21, and authorities cited.)
    WM. A. BYRNE, attorney for appellees.
    Appellant was not seeking to recover his losses from the men with whom.he played, nor from any employe of a gaming place, but confessedly and avowedly from the “partners and proprietors.”
    It was therefore not enough for appellant to show that he lost money in the game of poker at this place, he was bound to make plain to the jury, that he lost it to appellees, as “partners and proprietors.”
    
      This he did not do. His testimony is, not supported by anyone and is denied by James Nolan, one of the .appellees, in all matters connecting himself or Respass or Henegar, with the game as “partners and proprietors;” nor indeed, is it shown that he lost to appellees even as. individuals.
    Appellant Roberts, relies upon his testimony alone to make his case against appellees.
    The jury did. not believe Roberts; neither should they have believed him.
    AUTHORITIES CITED.
    Gayhearf v. Patton, 20 S. W. 12, 14 Ky. Law Rep. 570; Reed v. Langford, 3 J. J. Mar. 420 (26 Ky.); Salmons v. Webb, 12 B. Mon. 365 (51 Ky.); Crook v. Dillon, 1 Ky. Law Rep. 62; Toostal v. Bishong, 2 A. K. Mar. 521 (9 Ky.); New York Life Ins. Co. v. Graham, 2 Duvall 506 ‘(63 Ky.); L. & N. R. R. Co. v. Gorman. 13 Ky. Law Rep. 494; Bagby v. Lewis, 2 T. B. Mon. 76 (19 Ky.); Roach v. Maid Id. 142; Grimes v. Dearborn, 3 J. J. Marsh (26 Ky); Garrard v. White, 14 S. W. 966, 12 Ky. Law Rep. 656; Hampton v. Meek, 15 S. W. 521; 12 Ky. Law Rep. 790; Swope v. Shafer, 22 S. W. 78, 15 Ky. Law Rep. 42; Arthur v. Watson, 15 Ky. Law Rep. 605; Triplett v. Sealbach, 91 Ky. 30.
   Opinion op the Court by

¥m. Rogers Clay, Commissioner

Reversing.

Plaintiff, Park Roberts, instituted this action against J. B. Respass, James Nolan, Andrew Hennegar, and others to recover the sum of $3,500 alleged to have been lost in a poker game conducted by the defendants on Court street, in the city of Covington, Ky. The action was based upon the statement that the defendants were partners and proprietors of the place where the game was carried on, and that they persuaded and invited and otherwise induced the plaintiff to visit their said place. Respass, Wilson, and others filed a joint answer, putting in issue the allegations of partnership and their connection with the same. Nolan and Hennegar failed to answer; but, it being conceded that it was agreed before trial that the allegations of the petition and amended petition as to them might be traversed of record, the court, after the trial, entered a nunc pro tunc order traversing of record the allegations of the petition. Before the trial the suit was dismissed without prejudice as to Wilson and Kincade and others. The case against Respass, Nolan, and Hennegar was tried by a jury and a verdict returned in favor of the defendants. From the judgment entered thereon, Park Roberts prosecutes this appeal.

The testimony of the plaintiff was to the effect, that he had been engaged in the saloon business at Ft. Thomas, Ky., for about 10 years; that on or about the 10th or 15th of April, 1906, one “Tick” Armstrong, who was in charge of the check rack at a place in Covington where gaming was carried on, approached him, and invited him to participate in a game of poker conducted at that place. When he failed to go on this invitation, he was again approached by Armstrong, and finally went to the place and continued to go there for some time. From the early part of May until about the middle of September he lost the sum of $3500. The place where the gaming was carried on was fitted up with lights, telephone, tables, and chairs. Nolan admitted to him that he was one of the six proprietors. The telephone was in Nolan’s name. Nolan introduced plaintiff to Respass. Later plaintiff had three conversations with Respass, who admitted that he was connected with the game as a partner, and was receiving one-sixth of the receipts as rent for the building on which he had a lease. Hennegar likewise admitted that he was a partner. Nolañ and Hennegar were there all the time. Respass was there only occasionally. Nolan and Hennegar were in charge of the game. Checks on different banks were produced which had been given to Nolan, and by him indorsed in payment of losses sustained by Roberts. On cross-examination Roberts admitted that he wanted to get his money back in any way he could, and that he even asked for a partnership in the game for the purpose of recouping his losses. John Cunningham testified that he was a caterer employed to serve dinner from 5:30 to 8:30 o’clock in the evening at the place where it was alleged the gaming was conducted. He was paid for these meals by the cashier, was employed by Nolan, and was afterwards discharged by Hennegar. The only one of the defendants who testified was James Nolan. Nolan, after testifying to other matters, which it will not be necessary to detail, denied in positive terms that he told the plaintiff that he was a partner, or that the other men — Respess, Hennegar, etc. — were partners. He also testified that Roberts approached him for the purpose of securing an interest in the game, and told him that he had run a faro bank and stud poker in Butte City, Mont.

It is first contended by appellant that the court erred in failing to give a peremptory instruction in his, favor against Respass and Hennegar; counsel taking the position that the testimony was all one way, and that there was therefore nothing to submit to the jury. It may be conceded that where the testimony is all one way, and there are no facts or circumstances or other testimony tending to contradict the testimony of plaintiff, it is proper for the trial court to give a peremptory instruction in favor of the plaintiff. That is not this case, however. While appellant was not contradicted as to the statements which he claims were made by Respass and Hennegar, he was contradicted in regard to the statements which he claims were made to him by Nolan. This, then, wa,s sufficient to raise the issue of the credibility of the witnesses. That being the case, the evidence was, not all one way, and it was proper for the court to submit the issue involved to the jury, and it was within their province to believe or not believe plaintiff, as they saw fit. We are therefore of the opinion that the court did not err in submitting the case to the jury.

It is next insisted that the court erred in excluding evidence of the fact that there were house players engaged in the game, and that plaintiff was always playing against the best hand. If plaintiff had based his action upon the theory that the money he lost was won by the defendants, it might have been proper to show who were engaged in the game and whom the parties so engaged represented. Under the allegations of his petition, however, and under the theory upon which he based his suit, it was only necessary to show that he was invited, persuaded, or otherwise induced to visit the place in question by the defendants or any one of them, and that he lost his money at a game conducted at that place. That being the case, it is immaterial whether the game was fairly or unfairly conducted. He was entitled to recover in either event. Under such circumstances, the testimony as to the unfairness of the game would only serve to prejudice the minds of the jury, and distract their attention from the real issue in the case. We therefore conclude that the court properly excluded such testimony.

Appellant further insists that the entry of the nunc pro tunc order after the trial, traversing of record the allegations of the petition, was altogether unauthorized, and that he was therefore entitled to a judgment- notwithstanding the verdict, inasmuch as at the time the verdict was rendered the allegations of the petition as to the defendants Nolan and Hennegar were undenied. While it -does not so appear of record, it is insisted by counsel for appellee, and not denied by counsel for appellant, that it was agreed before trial that the allegations of the petition as to Hennegar and Nolan, could be traversed of record. By oversight this was.not done at the time. As the court still had jurisdiction- of the ease when the nunc pro tunc order was entered, it was not error to enter this order so as to make the record conform to the agreement previously made. Under these circumstances, the appellant was not entitled to a judgment notwithstanding the verdict.

The next complaint is of the instructions given and refused. The court instructed the jury as follows :

(1) If, from all the evidence, the jury believe that the defendants, J. B. Respass, James Nolan, or Andrew Hennegar, or either of them, invited, persuaded, or otherwise induced plaintiff ■ to visit the place at the southeast corner of Court avenue, and Second street, in the proof described, and that at the said place a game of chance was being carried on, to wit, a poker game, by defendants, as partners, or either of them, and that while playing said game the plaintiff lost at any time and within 24 hours $5 or more, they shall find a verdict for the plaintiff for the amount of his losses, not exceeding the sum of $3,500, the amount claimed in the petition; otherwise they will find for the defendants, or either or all of them.
“ (2) The court instructs the jury that by inviting, persuading, or inducing is not meant that personal application he made to the person invited, but that any conduct that induces such a person to visit such place is sufficient.”

Among others, the appellant offered the following instruction: “The court instructs the jury further, that by inviting, persuading or inducing is not meant that personal application be made to such person visiting such place, but the mere setting up and furnishing a place to carry on a game of chance is sufficient invitation. ’ ’

In the case of Triplett v. Seelbach, etc., 91 Ky. 30, 14 S. W. 948, 12 Ky. L. R. 661, wherein the court was discussing the sections of the statute under which this action was brought, it was said: “It is not understood that the person inviting or persuading or inducing should make personal application to the person invited etc., in order to render himself amenable for the fine or to such person; but any conduct of his that induces such person to visit such place is sufficient. If a person furnish a place for the purpose of having-others to visit it and game, and any one is induced thereby to visit said place while gaming is going on, the person thus fixing up the place, etc., is liable for the statutory penalty; and he is also liable for any suih that the said person may lose at gaming while visit* ing said place.” By comparing this language with that of instruction No. 2, given by the court, it will be seen that, while the court properly instructed the jury upon the question of what was sufficient invitation, persuasion, or inducement, he did not go far enough and embody in the instructions the idea involved in the latter part of the paragraph above quoted. This idea is embraced in the instruction offered by counsel for appellant. Under the circumstances of this case, we are of the opinion that appellant was entitled to the instruction offered, and that the court erred in failing to give the same.

For the reasons given, the judgment is reversed, and the cause remanded for a new trial consistent with this opinion.  