¶1(dissenting).
¶2I think there should be a new trial. I think the evidence is insufficient to sustain either the verdict of the jury or the findings of my Brethren. Plaintiff’s husband was by occupation a steam fitter, receiving three dollars and fifty cents a day. He had been working for a railroad company in Ogden. Prior to that time he lived in South Carolina, where he was in business. She was married to him April 11, 1909, in Ogden, where they then lived. He left her in August of that year. Since then she has not heard of him. She testified that shortly after the marriage she received five hundred dollars from her folks in South Carolina, and that her husband handed her one thousand, five hundred dollars making in all two thousand dollars. This money she testified, was kept in a trunk in a room in Ogden. As is already suggested, and as I think is shown by the evidence, and as evidently was found by the jury, one thousand, five hundred dollars of the two thousand dollars belonged to the husband. She testified that all of the two thousand dollars was taken by him from the trunk at different times between the 1st and the 12th days of May, 1909, and that the last amount, five hundred dollars, was taken by him on the afternoon of the 12th while she was at a theater. She testified that she asked her husband not to gamble; that she pleaded with him not to do so, and that she did not consent “to his gambling the money.” She also testified that each time her husband took any money she had knowledge of his taking it. It is not made to appear that she made any.objection to, or complaint of, his taking it. She did not testify that any of the money was taken by him without her consent or permission, or against her will, or that she made any complaint, or concerned herself about the taking of it, until in September and after her husband had left her. I mention this not as showing that plaintiff’s husband gambled any money with her consent, but as bearing on the question of ownership of the money. A witness testified that he saw plaintiff’s husband on the 1st, 13th, and 15th days of May, 1909, in the defendants’ gambling house. On the first occasion, the witness *28testified be only noticed her husband playing, “but did not stop to notice what or how he was playing or how he was betting.” There is no evidence to show that her husband then won or lost anything. The witness testified that on the 13th he and plaintiff’s husband played “craps” in the defendants’ house. He testified that plaintiff’s husband on that occasion “started in with a five dollar note. I was playing quarters, and he was playing fives, and then he lost. Then he played twenties, twenty dollar notes. I lost two dollars playing quarters, and he was playing twenties, that would be two hundred dollars. As I lost a quarter he would lose a twenty. I saw him play eight tewnties, twenty dollars every throw.” He further testified that he also saw him at a faro table, playing faro, with about one hundred and fifty dollars worth of “yellow chips,” but that he did not stay to see how he came out, and that he did not know whether he quit winner or loser. On the last occasion, the 15th, the witness again saw plaintiff’s husband in the defendants’ house playing. He testified, “I never went around the game where he was playing,” and consequently he did not know what he was playing, or whether he won or lost on that occasion. Now,' it is the testimony given by this witness that plaintiff’s husband on the night of the 13th lost one hundred and sixty dollars “playing or shooting craps,” and the fact that he on that day exhibited to his grocer a roll of bills wrapped with a “twenty,” which are pointed to in support of a finding that the defendants received from the plaintiff’s husband the sum of one hundred and sixty dollars belonging to her. There is no evidence showing that her husband prior to the night of the 13th had no money of his own. In fact, I think the contrary is shown. While the evidence shows than on the night of the 13th he lost in the defendants’ house one hundred and sixty dollars playing craps, it is not shown whether he lost it to the defendants or either of them, or to any of their agents or employees, or to a third person. Neither does the evidence show that he then, or at any time, exhibited, or parted with, or paid, any money to the defendants, or to any one. From the mere testimony — and there is *29no other — that the plaintiff's husband lost one hundred and sixty dollars in the defendants’ gambling house “playing or shooting craps,” I cannot judicially know, nor could the jury presume, that the defendants, and not another, won and received the lost money. We have no statute permitting a recovery of money lost in gambling, as is provided by many statutes, and, by some, rendering the proprietors or keepers of a gambling house liable whether the money lost in their gambling house was received by them or by another. To entitle the plaintiff to recover, it was incumbent upon her, not only to prove that her husband gambled and lost a definite sum of money in the defendants’ gambling house, hut also that the money gambled and lost by him was her money, and that he, without her knowledge and consent, took it and gambled it — wrongfully appropriated it to his own use — -and that the defendants by a participation in such gambling transactions, or without other lawful and valuable consideration, received it. I have already adverted to the insufficiency of the evidence to show that the defendants received the one hundred and sixty dollars which, as testified to by the witness, was lost by the plaintiff’s husband. Neither is the evidence sufficient to show that such money lost by him was plaintiff’s money. The evidence as- strongly points to the fact that it was his money as that it was hers. Fifteen hundred of the two thousand dollars in the trunk belonged to him. Let it be assumed, as in fact was testified to ,by the plaintiff, that her husband between the 1st and 12th days of May took all of it. She testified that the first of the two thousand dollars was taken about the 1st of May, and that he then took two hundred and fifty dollars; that later, and before the 12th, at different times, he took other amounts, from two hundred and fifty dollars to five hundred dollars; and that on the 12th there remained but five hundred dollars, which was also taken by him on that day. The evidence shows that all the money lost by him in the defendants’ house was one hundred and sixty dollars. He lost that on the evening or night of the 13th. It is not shown that he gambled or lost money at any other place, or that he other*30wise paid out any money. The evidence shows him to have been in the defendants’ bouse but three times. May 1st, 13th, and 15th. It is not shown that he lost anything the first time. If he then did lose anything, all that he lost of the two thousand dollars was two hundred and fifty dollars, for that was all that he then had taken of it. From then until the 13th he was not seen the the defendants’ house, nor in any other gambling house, nor engaged in gambling anywhere; nor is it shown that he otherwise disposed of any money. Yet between the 1st and the 13th days of May he took from the trunk all of the two thousand dollars, except the two hundred and fifty dollars which was taken by him about the 1st. Now, let it be assumed that the last five hundred dollars in the trunk taken by him on the 12th was plaintiff’s money, still, it is just as probable that the money so lost by him was a part of the one thousand, five hundred dollars which belonged to him as of the five hundred dollars which belonged to her.
¶3The presumption, if any at all is to be indulged, is that he gambled his own money, and not that of his wife.