Mullinax v. J.M. Brown Amusement Co.
Mullinax v. J.M. Brown Amusement Co.
Opinion of the Court
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
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.
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. Madden Enter., Inc., 303 S.C. 384, 401 S.E.2d 153 (1991).
Respondent brought this action under S.C.Code Ann. § 32-1-20 (1991)
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.
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 complies with the Video Game Machines Act (VGMA).
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
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 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
For the foregoing reasons, the Court of Appeals’ decision is
AFFIRMED.
. Section 32-1-20 provides that:
. 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 ....
. 198 Ill. 274, 65 N.E. 116 (Ill. 1902).
. We 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).
Concurring Opinion
concurring in result only.
Reference
- Full Case Name
- 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
- Cited By
- 17 cases
- Status
- Published