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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