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Messa V. Sullivan Court of Appeals, 1965. 61 Ill.App.2d 386, 209 N.E.2d 872

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Messa v. Sullivan Court of Appeals, 1965. 61 Ill.App.2d 386, 209 N.E.2d 872.

BURMAN, PRESIDING JUSTICE. Betty Messa brought this action against James Sullivan, Helen Sullivan and the Keyman's Club, an Illinois not for profit corporation, to recover damages for the bodily injuries which she sustained as the result of being bitten by the defendants' dog. The complaint was based on two theories: first, a common law action for the keeping of a vicious animal and, second, an action based on what is commonly known as the "Dog Bite Statute" (Ill.Rev.Stat.l963, ch. 8, § 12d). The parties waived a jury and the case was tried by the court. On the common law count, the trial court held for the defendants because he found that the plaintiff was contributorily negligent. No appeal has been taken from the judgment entered on that issue. On the statutory count, however, the court concluded that the plaintiff should recover and therefore he entered judgment awarding the plaintiff damages only against James Sullivan and the Keyman's Club in the amount of $3,000. From this judgment these two defendants appeal. They contend that the plaintiff failed to prove, as she was required to prove in order to recover under the statute, that she was lawfully on the defendants' premises and that she did not provoke the dog to attack. Alternatively the defendants contend that the amount of the damage award is not supported by the evidence.

The plaintiff suffered her injuries in the Keyman's Club building, 4721 West Madison Street in the City of Chicago. Located on the lower level and on the first and second stories of this building were the following: a bowling alley, a barber shop, a cocktail lounge, banquet and meeting rooms, a ballroom and various other businesses and offices. A labor union office occupied the third floor and the fourth floor was vacant. James Sullivan, the president of the Club and the manager of its building for over twenty years, and his wife, Helen, occupied the fifth floor as their residence. No other use was made of the fifth floor. The Sullivans' apartment contained a safe in which the receipts from the operation of the building were kept. In addition, the apartment contained the defendants' furniture, personal property and their three year old German Shepherd dog, named "K.C.", which was kept there to protect the Club's property in the apartment. The various businesses located in the building were advertised by signs on the exterior of the structure and on a building directory which was located in the building lobby. There were, however, no notices any-where that the fifth floor was used as a residence and not for commercial or business purposes.

All the floors of the building were served by an automatic elevator which could be reached on the ground floor by entering the building from Madison Street and by walking through the building lobby past the building office, which was located on the left of the lobby as one entered the building.

The plaintiff and the defendant, James Sullivan, testified concerning the events which occurred on the day in question. The plaintiff, who was a deaf mute, testified that at about two o'clock on the afternoon of June 12, 1961, she entered the defendants' building for the purpose of selling printed cards depicting the deaf and dumb alphabet. She said that this was the first time she had been in the building; that as she walked through the lobby she saw a woman at a telephone switchboard in the building office, that she entered the elevator and rode it to the fifth floor. When she got to that floor, the door on the elevator itself opened automatically. The plaintiff said that before she could step out of the elevator she had to manually open a second door which swung outward. She opened this door, which she said was heavy. She stepped out into the fifth floor hall and turned to the left where there was a door. At this point the defendants' dog ran out of the door and jumped on the plaintiff. She testified: " * * * the dog bit me on the leg, and he bit me on the body, and he bit me on the arm, and I tried to cover my face. And the dog was big, and the dog was bigger than I was, and he was on top of me, and three times he bit me." The plaintiff stated that she finally managed to get back to the elevator and to ride down to the lobby where she told the woman at the switchboard what had happened.

During her testimony, the plaintiff was shown plaintiffs exhibit number one, a picture of a sign reading in large letters:

WARNING KEEP OUT VICIOUS POLICE DOGS INSIDE

She identified the exhibit as a picture of a sign which was posted on the manually operated elevator door which swung outward into the fifth floor hall. However, she denied having seen the sign because, in her words, " * * * the door was so heavy. I was pushing the door, it was a sliding door, and I did not see the sign."

Concerning her injuries, the plaintiff identified two exhibits as accurate pictures of the large marks and wounds inflicted by the dog on her leg, on her right side and on her right arm. The plaintiff testified that the bites left "holes" in her arm, that she felt pain for about two months after the occurrence and that she could not sleep for two weeks after the events in question.

The defendant, James Sullivan, testified that on the day in question he and an office girl were in the building office; that he observed the plaintiff walk into the lobby and proceed directly to the elevator without looking at the directory; that he saw the plaintiff board the elevator; and that he noticed the elevator go to the fifth floor. He said that the door on the elevator itself opened automatically; that when this door opened on the fifth floor, there was a second door which must be opened outward by hand to gain entrance to the hall; and that a thirty inch high sign warning of the presence of vicious dogs was posted on this manually operated door so that the bottom of the sign was about three and one-half to four feet from the floor. He also stated that the door to his apartment on the fifth floor was to the right of the elevator door about fifteen feet down the hall. The defendant testified further that he saw the plaintiff after she came down from the fifth floor; that he tried to administer first-aid for the scratches on the plaintiffs arm; and that he observed a tear in her dress. In his discovery deposition, the defendant testified that there was no sign in the elevator itself regarding vicious dogs and that the manually operated elevator door on the fifth floor could be locked by a key, but that it was unlocked on the day of the occurrence.

The "Dog Bite Statute" with which this appeal is principally concerned provides: If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term "owner" includes any person harboring or keeping a dog. The term "dog" includes both male and female of the canine species. (Ill.Rev.Stat. 1963, ch. 8, § 12d)

This court, in Beckert v. Risberg, 50 Ill.App.2d 100, 199 N.E.2d 811, set forth the four elements of an action under this statute as follows: (1) injury caused by a dog owned or harbored by the defendant; (2) lack of provocation; (3) peaceable conduct of the person injured, and (4) the presence of the person injured in a place where he has a legal right to be.

There is no dispute that the plaintiff was bitten by a dog owned by the defendants and hence there is no question concerning the first element above. The defendants contend that the other elements are not satisfied, however, because the plaintiffs entry onto the fifth floor past a large sign warning her of the presence of the dog which bit her constituted an unlawful entry by the plaintiff and constituted provocative behavior on her part.

We do not agree that the plaintiff was not lawfully on the defendants' premises. From all indications on the exterior of the defendants' building, in its lobby and on the inside of the elevator cab itself, people like the plaintiff could only surmise that the entire building was devoted to business purposes and that it was intended that they should come there on business. No notices anywhere indicated that any part of the premises was used as a private residence. It is clear, therefore, that when she entered the building, crossed its lobby, entered the elevator and rode it to the fifth floor, the plaintiff was lawfully on the premises. In addition, we believe that she was also lawfully on the premises when she entered the fifth floor hall where she was attacked. Persons entering the building and riding its elevator would have no reason to believe that the fifth floor was used for residential purposes or that vicious dogs were kept there. The sole warning to this effect was posted in a place where it could be seen only split seconds before one would enter the danger area and only at a time when the elevator passenger would be concerned with pushing open the heavy door in order to step into the hall and continue on with his business there. We agree with the trial court that under these circumstances the warning sign was in the wrong location, that it did not give adequate warning of the danger and that hence the sign gives no grounds for holding that persons who enter the hall have no legal right to be there.

The cases primarily relied on by the defendants are distinguishable on their facts and are not applicable here. In Fullerton v Conan 87 Cal.App.2d 354, 197 P.2d 59, the California District Court of Appeal affirmed a judgment for the defendant in a case brought by a five year old child to recover for injuries she received when bitten by the defendant's dog. She had sued under the California "Dog Bite Statute" which, like our own statute, required that the plaintiff lawfully be on the dog owner's premises. In that case, however, unlike the present case, it appears that the child had been given a direct, oral instruction not to go into the yard where the dog was. In another California dog bite case. Gomes v. Byrne, 51 Cal.2d 418, 333 P.2d 754, the court affirmed a judgment for the defendant. That case is not like the case at bar because there the plaintiff saw and heard the dog before he entered the yard where the dog was kept. We do not believe that the other cases cited by the defendants are controlling and it would serve no useful purpose to extend this opinion by discussing them at length. Next the defendants argue that the plaintiff was guilty of provocative behavior at the time she was attacked. They reason that the plaintiff approached the apartment and the dog without giving a warning as to the nature of her visit; that this act represented a threat to the security of the apartment; that the dog resented this threat and that the plaintiff should have known such conduct would be likely to provoke a dog to attack. We do not agree. Here the plaintiff had a legal right to be in the hallway. Her only actions at that point consisted of stepping off the elevator and walking a short distance toward the defendants' apartment door. We do not believe that the term "provocation" in the statute was intended to apply to a situation like this and thereby relieve from responsibility the owner of a vicious dog, which is specifically kept for protection, merely because the dog interprets the visitor's movements as hostile actions calling for attack. Finally the defendants contend that the award of $3,000 is not supported by the evidence and that it is excessive. Our courts have consistently held that a damage award to a plaintiff in a personal injury case will not be set aside unless it is so palpably excessive as to indicate passion or prejudice on the part of the trier of fact (Holsman v. Darling State Street Corp., 6 Ill.App.2d 517, 128 N.E.2d 581, and cases there cited; Eizerman v. Behn, 9 Ill.App.2d 263, 132 N.E.2d 788; Lau v. West Towns Bus Co., 16 I11.2d 442, 158 N.E.2d 63) or unless it is so large as to shock the judicial conscience (Barango v. E.L. Hedstrom Coal Co., 12 111. App.2d 118, 138 N.E.2d 829; Smelcer v. Sanders, 39 Ill.App.2d 164, 188 N.E.2d 391; Myers v. Nelson, 42 Ill.App.2d 475, 192 N.E.2d 403). The record shows that the plaintiff sustained multiple wounds on her body, arms and legs and that she suffered great pain. We find nothing here to indicate passion or prejudice on the part of the trial judge and we do not believe that under the circumstances the award can be considered shocking to the judicial conscience. Hence we cannot substitute our judgment for that of the trial judge and set aside the award. The judgment should be affirmed. Affirmed. MURPHY, J., and KLUCZYNSKI, J., concur.

Dobrin v. Stebbins Court of Appeals, 1970. 122 Ill.App.2d 387, 259 N.E.2d 405.

LEIGHTON, JUSTICE. In a non-jury trial, plaintiff recovered a judgment against defendant for personal injuries he suffered when he was bitten by defendant's dog. Although plaintiff, who is the appellee in these proceedings has not filed a brief, we will review this appeal on the merits. Daley v. Jack's Tivoli Liquor Lounge, Inc., Ill.App., 254 N.E.2d 814.

The facts are not in dispute. On July 16, 1964 defendant was the owner of a toy German Shepherd. He chained it to a pipe so that the dog was confined within defendant's property at 6225 West 79th Street in the City of Chicago. Plaintiff, then 17 years of age, was selling magazines. There was no sign or posted notice on defendant's property warning salesmen or others to keep off. Plaintiff went to defendant's home. He walked up a dirt path that led from the sidewalk. When plaintiff was within five or ten feet of the door, defendant's dog jumped on plaintiff, bit him in the abdomen and on the thigh. After getting away, plaintiff was taken to a nearby clinic where he received treatment for his injuries. Later in the day he visited his family doctor who replaced the bandages and gave him a tetanus shot. Pain from the dog bites lasted three or four days. Plaintiffs doctor submitted a bill which was paid. Plaintiff filed suit against defendant and invoked what is colloquially the "Dog Bite Statute," Ill.Rev.Stat.l963, ch. 8, sec. 12d which provides: Dogs attacking or injuring person—Liability of owner. If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term "owner" includes any person harboring or keeping a dog. The term "dog" includes both male and female of the canine species.

After hearing evidence, the trial judge awarded plaintiff damages in the sum of $750.00. Defendant appeals. He contends that plaintiff was a trespasser when he entered defendant's property; therefore no judgment could be recovered under the statute. In the alternative defendant contends that the damage award was excessive.

A trespasser is one who does an unlawful act or a lawful act in an unlawful manner to the injury of the person or property of another. 87 C.J.S. Trespass § 1; see People v. Goduto, 21 I11.2d 605, 174 N.E.2d 385. By this definition, plaintiff was not a trespasser on defendant's land when he went there during the ordinary hours of the day to solicit magazine subscriptions. An owner of property who provides a path or walk from the public way to his door, without some indication (sign, posting of notice or words) warning away those who seek lawful business with him extends a license to use the path or walk during the ordinary hours of the day. Persons who thus make use of the path or walk are licensees. Restatement, Second, Torts, sec. 332, Comment b; Stacy v. Shapiro, 212 App. Div. 723, 209 N.Y.S. 305 (1925); Reuter v. Kenmore Building Co., 153 Misc. 646, 276 N.Y.S. 545 (1934). Our decision in Messa v. Sullivan, 61 Ill.App.2d 386, 209 N.E.2d 872 supports this view. Therefore, plaintiff was a licensee on defendant's land when he was bitten by defendant's dog. He was in a "[p]lace where he may lawfully be. * * * " within the meaning of Ill.Rev.Stat.l963, ch. 8, sec. 12d.

This being so, proof that plaintiff while peaceably conducting himself and without provocation, was injured by defendant's dog justified entry of judgment in favor of plaintiff and against defendant. Beckert v. Risberg, 50 Ill.App.2d 100, 199 N.E.2d 811; Bailey v. Biy, 87 Ill.App.2d 259, 231 N.E.2d 8. The damages the trial judge awarded plaintiff were within the limits of fair and reasonable compensation. Johnson v. Eckberg, 94 111. App. 634; Sesterhenn v. Saxe, 88 Ill.App.2d 2, 232 N.E.2d 277. Judgment is affirmed. Judgment affirmed. STAMOS, P.J., and DRUCKER, J., concur.

SUPPLEMENTAL OPINION LEIGHTON, JUSTICE. Defendant petitions for rehearing on the ground that when plain-tiff came upon defendant's property, he saw the dog that bit him. Defendant argues that the best warning a property owner can give to those who may come upon his land is his dog chained, in plain view and standing guard. Defendant contends that presence of his dog in this way was constructive notice to the plaintiff that he could enter defendant's property only at his peril.

We agree that a dog chained to guard its owner's property where it can be seen, is notice that entry on the land is forbidden. However, the record in this case does not support defendant's contention. Both plaintiff and the defendant testified that there were bushes on either side of the front door to defendant's home. Plaintiff testified that he never saw defendant's dog before it bit him because it "must have come out of the bushes * *." In other words, defendant's dog was not where plaintiff could see it. The petition for rehearing is denied. Petition for rehearing denied. STAMOS, P.J., and DRUCKER, J., concur.

ACF Wrigley Stores, Inc. v. Olsen Supreme Court of Michigan, 1960. 395 Mich. 215, 102 N.W.2d 545.
KELLY, JUSTICE.
This is an appeal from a Wayne county circuit court finding that a television program known as "Play Marko" was not a lottery.

The television program under question consists of drawing and televising numbers by the television station. The participant in his home, or elsewhere, observes a television screen and ascertains whether the numbers drawn match the vertical, horizontal or diagonal set of numbers on his card. The participant may use a card distributed by plaintiff or he may prepare his own card, which participant forwards to the television station where it is registered and then returned to participant with notice of the broadcasting day on which the card may be used. If participant matches numbers, he notifies the broadcasting station and is awarded a prize.
No one can compare the legislation of the state without seeing that the legislature has found it desirable to deal with lotteries differently as well as more severely than with other gambling transactions. The reason is not difficult to find. Lotteries generally involve large sums of money, or large prizes of some kind, and circulate their tickets in large numbers and in all parts of the country. All classes and persons of all ages are tempted to invest in the chances of sudden riches, and it is a matter of history that the passion for such investment has led to serious and wide-spread mischief. No other form of gambling operates as extensively in its dealings or demoralizes so many people. It is this extensive reach and not merely its speculative purposes which makes lottery-gambling so dangerous. The profits are so great that small penalties might not be efficacious enough to suppress the business, and the changes of our own legislation indicate this by the successive addition of imprisonment in the county jail, and even in the state-prison, to the large fine first imposed in 1828. * * *
The Alabama supreme court in Dark v. State, 262 Ala. 462, 80 So. 2d 312, considered the question whether a lottery existed where the operator of a store awarded prizes to contestants whose names were drawn on weekly television programs. The court held: "Scheme whereby prizes were given by operator of store to contestants whose names were drawn on weekly television program without contestants being required to make any purchase or pay any money, was not a 'lottery', though purpose of scheme was to increase store's business through television advertising."

The prosecuting attorney relies upon the Colonial Theatre Cases (Sproat-Temple Theatre Corp. v. Colonial Theatrical Enterprise, Inc., 276 Mich. 127, 267 N.W. 602, and United-Detroit Theaters Corp. v. Colonial Theatrical Enterprise, Inc., 280 Mich. 425, 273 N.W. 756). Both of these cases dealt with the theatre's plans whereby prizes were awarded to occupants of the theatre, or those in the lobby, or in the immediate vicinity of the theatre, who held tickets or cards bearing the numbers drawn from a container.
Each of these cases required the participants' presence, either in the theatre or in the immediate vicinity, and presented an entirely different combination of facts than are presented in this appeal.

The trial court's opinion stated: "Michigan statutes do not define lotteries. The elements of a lottery are not set forth in the statute and, therefore, this has been left to the courts. "Our lottery statute has been on the books for many years and was passed to prevent the mulcting or cheating of the public by the sale of gambling chances. "In 41 Georgetown L J, 556, 558, it is said that authority is only as good as the reason for it, and the evil sought to be eradicated by the lottery statutes was the impoverishment of the participant, and the enrichment of the promoter of the scheme, but this evil results only when the participant pays something valuable for the chance to win a prize. "It is the opinion of the court that these radio and television programs do not encourage gambling because the person is passive as far as the give-away plan is concerned; also, it seems to follow that the radio and television programs are not included within the prohibition of the statutes. "The courts have been quite realistic in viewing giveaway pro-grams only as a nuisance in our time and not as the evil of the century.

"The court therefore holds that television program 'Play Marko' is not a lottery within the meaning of the statute."

We agree with the trial court, and hold that if television programs such as considered in this appeal are to be prohibited it must be by legislative action and not by decision of the court.
Affirmed. No costs, a public question being involved.
SOURIS, J., took no part in this decision.
DETHMERS, C.J., and CARR, SMITH, BLACK, EDWARDS and KAVANAGH, JJ., concur.

People v. Brundage Court of Appeals, 1967. 7 Mich.App. 364, 150 N.W.2d 825.

FITZGERALD, JUDGE. The defendant, Clayton Brundage, was manager of a store known as Bargain City in Frenchtown Township, Monroe County, Michigan. In his capacity as manager, he instituted a "business promotion" scheme known as Goodwill Cash Night. For this activity he was charged with operating a lottery and convicted following jury trial. From this he appeals, claiming the jury was improperly instructed.

To understand the mechanics of the promotion, the following undisputed facts are relevant: (A) A week before the date of the first drawing, a clerk is at the store to register any visitors or customers who come to the store. The clerk sits at a desk which is within the store near the front entrance but is not in the general sales area of the store. (B) The clerk inquires of the store visitor or customer if he or she wishes to register—and if so, permits them to do so and explains that there is to be a drawing every week and that $200 will be drawn for on the nights of each drawing, being each Tuesday at 7:45 p.m. The registrant is informed that the drawing is free and it is not necessary to buy anything to be eligible. (C) Upon registering on a master registration sheet, the registrant is given a "Weekly Qualification Card". The card sets forth the day and time of drawing, being Tuesday at 7:45 p.m., starting on Tuesday, June 21, 1966, and states the drawing is held outside in the store parking lot. The drawing is announced over a public address system heard inside and outside of the store. (D) The "Weekly Qualification Card" further states that if your name is drawn you must present the qualified card to the judges on the platform within 5 minutes after your name has been announced in order to be declared the weekly winner. In addition to the weekly drawing, 2 consolation drawings for $10 each are drawn and may be claimed if the registrant is present. (E) The "Weekly Qualification Card" is punched for the first week and the registrant is instructed that he or she must get it punched for subsequent weeks in order to be eligible for the subsequent drawings. Any cashier, store attendant or the clerk at the registration booth may do this. (F) One registration is good for all drawings, so long as the drawings continue. (G) The master registration sheet is transcribed to alphabetical and numerical control cards which makes it impossible for a person who registers more than once to have more than one number in the drawing drum—thus every registrant has an equal chance on drawing night. (H) The drawing is done by a child who picks one numbered tab from the drum. This numbered tab is compared to the numerical control card which the judges have and the name appearing on that card is declared the winner. (I) If the winner does not appear to claim his prize, the money becomes a part of a larger prize to be awarded the following week. At the conclusion of the term of all drawings, any money not distributed on prior nights will be drawn for until a winner does appear so that the total sum agreed upon at the start of the drawing is disbursed to registrants. (J) During the drawing, the person in charge states that it is not necessary to buy anything in the store in order to participate. The "Weekly Qualification Card" also states "that the awards are free and that you do not have to buy anything at any time, there is no consideration. It's all free."

Other undisputed facts are that a drawing in accordance with the above conditions was held on June 21, 1966, and Clayton Brundage knowingly permitted the setting up, managing and drawing and the prosecution followed. The defense as well as the prosecution sought a directed verdict. The court denied the motion in each case.

The court refused to give the instructions requested by the defense and the defendant objected to this omission and to the instructions given. The requested instructions by the defendant were as follows: "1. You are instructed that the essential elements for a conviction under the Michigan lottery statute are as follows: A. A chance, B. For a prize, C. For consideration. "2. You are further instructed that in order for there to be consideration the same must have a significant value which is measurable. Consideration is defined as the payment by the participants of something of significant value for the right or privilege of participating in the drawing. "3. The consideration necessary to prove a lottery must come from the participants in the form of a payment for their chance to win. The payment by the participant must be one possessing value and may not be insignificant or having a value which is not easy to comprehend. "4. You are instructed that you may aid yourself in determining what a valuable consideration is by considering the purpose for which the lottery statute was passed. "5. The Michigan lottery statute was passed to prevent the mulcting or cheating of the public by the sale of gambling chances. The evil sought to be eradicated by the lottery statute was the impoverishment of the participant, and the enrichment of the promoter and this evil only results when the participant pays something valuable for the chance to win a prize. "6. The prosecutor has the burden of proof, and beyond a reason-able doubt, to show to your satisfaction that a participant in Goodwill Cash Night gave a valuable consideration for this privilege of participating in the drawing."

The lengthy instructions actually given by the trial court ultimately narrow down to the definition furnished the jury for the "consideration" element of a lottery.

The relevant instructions were as follows: "Now I will say much the same thing in a little more explicit detail. The Court charges and instructs the jury, the mere fact that the game, so-called, that is before you is said to be free, or the mere fact that no purchases at the store are necessary, does not mean that there is not a consideration. Consideration, the Court rules can be direct, that is, patrons paying for the lottery tickets, which, of course, is strictly forbidden in this State, or it can be indirect, as the proofs can show attracting persons to a store who would not otherwise come is an indirect form, which the Court rules is sufficient to make it a lottery. Where there is such indirect consideration the Court charges the law to be, it suffices to satisfy the charge of lottery if you also find that there was a prize awarded and there was the element of chance, which both have been agreed by the People and the defense counsel. "The jury is instructed that the presence of the participating members of the public for the distribution of the weekly qualification cards, which must be punched at the Bargain City store by an employee, and the fact that a prize winner whose number is drawn by chance has to be present at the drawing on the night of the drawing, that under our Michigan law is sufficient consideration to make it a lottery. It tends to attract others. It is clearly intended to attract others to the store, who would not have otherwise come, and in this way the store profits, in effect, in this case. The undisputed facts show that the defendant and his store, of which he is manager, bargained with the public and promised them a so-called free chance, meaning there is no charge made, or no purchase need be made, for a lottery, if they give this consideration, if they come and do these things, and the doing of those things is sufficient. "The Court instructs the Jury that if you find you must leave your home to participate, that is, go to Bargain City to register, and have your weekly card punched, and be present for the drawing, or take some active part in the Goodwill Cash Night, that these requirements constitute sufficient consideration under the law. You are further instructed while the patrons may not pay, and the defendant may not receive any direct fee, there is indirect fee both paid and received. Those obtaining prizes pay such consideration for them, and the business establishment reaps direct financial benefit." * * * The prosecution relies heavily on the fact that the listener in the ACF Wrigley Case, supra, was "passive" as opposed to being an "active" participant in the instant appeal. We cannot subscribe to this distinction, based as it is upon the fact that one was conducted via television while the other was conducted in the parking lot of a store.

The court's instruction, telling the jury that consideration existed if it found that one must leave one's home to participate, to have the weekly card punched, and to be present for the drawing, amounted, in effect, to a direction of a verdict for the State. The instructions relative to consideration do not reflect the current thinking on the subject of consideration as expressed by the Supreme Court in ACF Wrigley, by the attorney general, or by this Court, and their use was error. Reversed, defendant ordered released and his bond cancelled.

People v. Brundage Supreme Court of Michigan, 1968. 381 Mich. 399, 162 N.W.2d 659. * * * * * * For the facts in this case, see People v. Brundage, 7 Mich. App. 364, 150 N.W.2d 825. The trial judge correctly charged the jury as to the element of consideration in connection with a lottery. This Court stretched almost to the breaking point a permissible finding of absence of consideration by its approval of such a finding by the trial court upon the facts in ACF Wrigley Stores, Inc. v. Wayne Prosecuting Attorney (1960), 359 Mich. 215, 102 N.W.2d 545. Wrigley distinguished earlier decisions of this Court upon the basis that "each of these cases required the participants' presence, either in the theater or in the immediate vicinity * * *." (P. 223, 102 N.W.2d p. 549)

The acts required in this case, including presence of a participant in the store twice weekly, were ample to provide the element of consideration. A participant (a) was required to go to the store, sign up, and receive a weekly qualification card and each week visit the store and have the card punched if he wished to participate in that week's drawing; (b) to have his weekly qualification card punched a different day from the day of the drawing; (c) to be present on the day of the drawing; (d) to use the registration and weekly qualification card printed and furnished by the store. (He could not make up or prepare his own). I would reverse the Court of Appeals and affirm the trial court.…...

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