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24853 - Mullinax v. J.M. Brown Amusement

Davis Adv. Sh. No. XX
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Gladys H. Mullinax, Respondent,

v.

J. M. Brown

Amusement Co., Inc.,

Petroleum Distributors,

Inc., and J. R. Stroupe,

of which J. M. Brown

Amusement Co., Inc.,

and Petroleum

Distributors, Inc. are Petitioners.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Cherokee County

L. Casey Manning, Judge

Opinionn No. 24853

Heard May 27, 1998 - Filed November 16, 1998

AFFIRMED

Richard H. Rhodes, Jonathan Z. McKown, and Wade

S. Weatherford, III, all of Burts, Turner, Rhodes &

Thompson, of Spartanburg, for Petitioner J. M.

Brown Amusement Co., Inc. William E. Winter, Jr.,

and William G. Rhoden, both of Winter & Rhoden, of

Gaffney, for Petitioner Petroleum Distributors.

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Mullinax v. J. M. Brown Amusement





J. Gregory Studemeyer, of Columbia; and Thomas F.

McDow, of Rock Hill, both for Respondent.



J. R. Stroupe, of Gaffney, pro se.





FINNEY, C.J.: We granted a writ of certiorari to review the

Court of Appeals' decision in Mullinax v. J. M. Brown Amusement Co., Inc.,

326 S.C. 453, 485 S.E.2d 103 (Ct. App. 1997). We affirm.





Gladys Mullinax, respondent, filed this lawsuit to recover her

husband's gambling losses pursuant to S.C. Code Ann.§ 32-1-20 (1991). Mr.

Mullinax sustained these losses during 1991 to 1993 while playing video

poker on petitioners' machines. Mr. Mullinax contacted an attorney and was

told that he could sue for his losses from the preceding three months or

someone else could sue for three times the amount of his losses from the

preceding three years. Together, Mr. and Mrs. Mullinax visited the attorney

and Mr. Mullinax paid the attorney. Mr. Mullinax continued to play the

video poker machines even after visiting the attorney.





At the conclusion of respondent's case, petitioners moved for a

directed verdict on the ground that respondent and her husband acted in

covin and collusion in bringing the lawsuit. The trial judge granted

petitioners' motion for directed verdict on the ground that the suit was

respondent's in name only and the suit was collusive as a matter of law. The

Court of Appeals reversed finding the evidence does not conclusively show

that Mr. Mullinax intentionally refrained from bringing the action in his own

name so that respondent could sue for three times the amount. Petitioners

J. M. Brown Amusement Co., Inc. (Brown) and Petroleum Distributors, Inc.

petitioned for review by this Court. We affirm.





In ruling on directed verdict motions, the trial court must view

the evidence and all inferences which may reasonably be drawn therefrom in

the light most favorable to the non-moving party. Fleming v. Borden, Inc.,

316 S.C. 452, 450 S.E.2d 589 (1994). If more than one reasonable inference

can be drawn from the evidence, the case must be submitted to the jury. Id.

In reviewing an order granting a directed verdict, the appellate court views

the evidence and all reasonable inferences from the evidence in the light most

favorable to the party against whom the directed verdict was granted.

Unlimited Services, Inc. v. Macklen Enter., Inc., 303 S.C. 384, 401 S.E.2d 153

(1991).

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Mullinax v J. M. Brown Amusement





Respondent brought this action under S.C. Code Ann. § 32-1-20

(1991)1 which allows a third party to sue for recovery of the gambling losses

of another when the loser fails to sue for those losses. Respondent asserts

that the statute contemplates collusion on the part of the gambler to

purposefully neglect to bring a lawsuit during the three month period

provided in S.C. Code Ann.§ 32-1-10 (1991)2so that a third party can recover

treble damages under § 32-1-20. Respondent maintains there was no

evidence presented that her husband purposely failed to file suit to allow

respondent to sue for a greater amount.





In this case of first impression, the Court of Appeals looked to

other jurisdictions for guidance in determining the implication of covin and

collusion under similar gambling loss recovery statutes. The Illinois Supreme

Court considered a case under a similar gambling loss recovery statute in

Kizer v. Walden.3 In Kizer a brother brought an action to recover the losses


1 Section 32-1-20 provides that:

In case any person who shall lose such money or other

thing as aforesaid shall not, within the time aforesaid,

really and bona fide and without covin or collusion sue and

with effect prosecute for the money or other things so by

him or them lost and paid and delivered as aforesaid, it

shall be lawful for any other person, by any such action or

suit as aforesaid, to sue for and recover the same and

treble the value thereof . . . .





2 Section 32-1-10 states that:

Any person who shall at any time or sitting, by

playing at cards, dice table or any other game

whatsoever or by betting on the sides or hands of

such as do play at any of the games aforesaid, lose to

any person or persons so playing or betting, in the

whole, the sum or value of fifty dollars and shall pay

or deliver such sum or value or any part thereof shall

be at liberty, within three months then next ensuing,

to sue for and recover the money or goods so lost and

paid or delivered or any part thereof from the

respective winner or winners . . . .





3 65 N.E. 116 (111. 1902).

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Mullinax v. J. M. Brown Amusement





of his gambling brother. In considering the issue of covin or collusion, the

Kizer court found the jury should have been allowed to decide whether any

collusion between the brothers was so extreme as to bar suit under the

statute. The Kizer court looked for evidence that the loser refrained from

recovering his losses within the statutory period and then brought the action

"in the name of his brother, or some other person, for the purpose of

recovering against the winner treble the amount of his losses." Kizer, at 118.

The court concluded that the trial court is not entitled to take the case from

the jury where the right of recovery depends on the existence of extrinsic

facts about which the evidence is conflicting. Kizer, id.





The Court of Appeals noted that Mr. Mullinax denied telling the

first attorney to delay filing an action and stated he called the lawyer

"several times . . . . He never made a move and never [did] anything, until

finally I called him and cussed him out and told him to send my stuff back

to me . . . He drug his feet from March until about October." Mr. Mullinax

testified that he had not engaged in any type of trickery, deceit or collusion.

He testified further that the lawsuit was respondent's and not his and he

told respondent that he would help her get the money back anyway he could.

While Mr. Mullinax admitted that he compiled the evidence of his losses for

the lawsuit, he gathered the information because he was the only one that

could make sense of it. Mr. Mullinax denied that his efforts to assist his

wife were collusive but he only wanted to help her. Respondent testified that

she was not in "cahoots" with her husband and that Mr. Mullinax did not

purposely fail to file an action within three months in order to allow her to

sue for a greater amount. The Court of Appeals noted that it was natural

for Mr. Mullinax to assist his wife in preparing for the lawsuit since he had

the necessary information and documentation. The Court of Appeals

concluded there was more than one reasonable inference that can be drawn

from the evidence, therefore the case must be submitted to the jury. We

agree.





Next, petitioner Brown contends the gaming statute is

unconstitutional and inapplicable to the facts of this case. Brown asserts

since he is licensed under State law it "would defy all notions of

substantial justice and fair play" to subject him to liability under the gaming statute.

Brown further asserts he should not be subject to liability as long as he

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Mullinax v J. M. Brown Amusement







complies with the Video Game Machines Act (VGMA).4





Petitioner's argument is not preserved for review as it was not

raised to nor ruled upon by the trial judge. Creech v. South Carolina

Wildlife and Marine Resources Dep't , 328 S.C. 24, 491 S.E.2d 571

(1997)(issue must have been raised to and ruled upon by the trial judge to

be preserved for review).





Petitioner Petroleum Distributors contends the Court of Appeals

erred in failing to hold that the causes of action occurring within three

months of the initial complaint had not accrued when the suit was filed.





S.C. Code Ann. § 32-1-10 provides that anyone who loses more

than $50.00 at a sitting while gambling has three months from the date of

the loss to sue for and recover the amount lost. Section 32-1-20 provides that

if the gambler does not sue to recover the losses within three months, a third

party may thereafter sue for recovery of the gambler's losses.





In the initial complaint filed on November 15, 1993, respondent

sought to recover her husband's losses from 1991 through 1993. Respondent

filed an amended complaint in November 1994 seeking recovery for losses

from June 11, 1991 through November 3, 1993. Petitioner asserts at the

time of the initial complaint, respondent had no cause of action under § 32-1-

20 for any claim after August 15, 1993, as those causes of action remained

with the gambler under § 32-1-10. Petitioner argues the defect was not cured by

the amended complaint because the amended complaint relates back

to the date of the initial complaint under Rule 15(c), SCRCP. Respondent

answers that the issue of ripeness was not in issue before the trial court because

neither petitioner pled a defense dealing with ripeness.







The amended complaint was sufficient as a supplemental pleading

pursuant to Rule 15(d), SCRCP. Rule 15(d) provides that the court may

permit a party to serve a supplemental pleading setting forth transactions or

occurrences or events which happened since the date of the pleading sought

to be supplemented, whether or not the original pleading is defective in its


4We note that in Berkebile v. Outen, we found the gaming statute

did not require playing of illegal games and was applicable to loss incurred

by a gambler playing legalized video poker. 311 S.C. 50, 426 S.E.2d 760

(1993).

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Mullinax v. J. M. Brown Amusement





statement of a cause of action or defense. Accordingly, the amended

complaint sufficiently asserted the causes of action which accrued after the

initial complaint.





Finally, Petroleum Distributors asserts the VGMA repeals by

implication the gaming statutes §§ 32-1-10 and 32-1-20. Petitioner argues

the VGMA sets forth a comprehensive set of rules and regulations concerning

video poker machines with limitations on the amount of payoffs and taxes on

each machine. Repeal by implication is disfavored and is found only when

two statutes are incapable of reconcilement. Butler v. Unisun Ins. Co., 323

S.C. 402, 475 S.E.2d 758 (1996). The Court of Appeals addressed this

question at length in Justice v. Pantry and concluded that section 32-1-20

was not impliedly repealed by enactment of the VGMA because the statutes

are not repugnant to each other and are not incapable of a reasonable

reconcilement. 330 S.C. 37, 496 S.E.2d 871 (Ct. App. 1998). We agree, the

VGMA did not impliedly repeal the gaming statutes. Justice v. Pantry,

supra.



For the foregoing reasons, the Court of Appeals' decision is

AFFIRMED.

TOAL, MOORE, JJ., Acting Associate Justice George T.

Gregory, Jr., concur. BURNETT, A.J., concurring in result only.





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