Mullinax v. J.M. Brown Amusement Co., Inc.

• Decision Date: 08 January 1998
• Docket Number: No. 2649,2649
• Citation: 485 S.E.2d 103,326 S.C. 453
• Parties: Gladys H. MULLINAX, Appellant, v. J.M. BROWN AMUSEMENT CO., INC., Petroleum Distributors, Inc., and J.R. Stroupe, Respondents.
• Court: South Carolina Court of Appeals

Page 103

485 S.E.2d 103

326 S.C. 453

Gladys H. MULLINAX, Appellant, v. J.M. BROWN AMUSEMENT CO., INC., Petroleum Distributors Inc., and J.R. Stroupe, Respondents.

No. 2649.

Court of Appeals of South Carolina.

Submitted Dec. 3, 1996.

Decided March 31, 1997.

Rehearing Denied May 22, 1997.

Certiorari Granted Jan. 8, 1998.

J. Gregory Studemeyer, Columbia; and Thomas F. McDow, of Rock Hill, for appellant.

William E. Winter, Jr., and William G. Rhoden, of Winter & Rhoden, Gaffney, for respondent, Petroleum Distributors, Inc.

Richard H. Rhodes, of Spartanburg; Jonathan Z. McKown and Wade S. Weatherford, III, both of Gaffney, all for respondent, J.M. Brown Amusement Co., Inc.

J.R. Stroupe, Gaffney, pro se.

HUFF, Judge:

Gladys Mullinax filed this action for the recovery of her husband's gambling losses under S.C.Code Ann. § 32-1-20 (1991) in 1993. The trial judge directed a verdict for Respondents on the grounds that Appellant's suit was collusive and barred by § 32-1-20. After a review of the legislative policy behind the statute and an examination of other jurisdictions' interpretations of the statute, we reverse and remand. ¹

FACTS

Mrs. Mullinax filed this action against Respondents to recover losses her "helplessly addicted" husband sustained from 1991 to 1993 while playing video poker on Respondents' machines. Mrs. Mullinax was unaware of her husband's gambling problem until 1991, when she saw a bank statement reflecting a $3,600 depletion in their savings account. Mr. Mullinax admitted his gambling addiction to his wife in 1993, after reading a newspaper article explaining "that you had a chance of suing if you had lost a lot of money and getting part of it back or something." He testified he "didn't fully understand all it said ... but it was a chance of getting your money back by suing ... [M]y wife could get it back." Mrs. Mullinax also testified her husband had simply run out of money to gamble with.

Mr. Mullinax then called an attorney who told him 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. The Mullinaxes visited the attorney's office together, and Mr. Mullinax paid him $1,000. Mr. Mullinax continued to play the poker machines after his contact with the attorney. Mr. Mullinax eventually released this attorney because he "wouldn't move. He didn't want the case." Mr. Mullinax subsequently hired a second attorney for his wife. ²

At trial, Mr. Mullinax emphasized he was merely assisting his wife in bringing the lawsuit. He told her he would "help her in any way, in any form, to try and get some of that money back for her...." Mr. Mullinax insisted his wife did not have any money to pay for a lawyer. At the request of the second attorney, Mr. Mullinax compiled a record of his gambling losses. This process took three months. Mrs. Mullinax explained that her husband "got in the drawers. I wasn't there. I didn't help him, because I didn't know what it was all about." It was her understanding she "had to file the suit, but he had all the checks and everything, and ATM things he put together himself."

A portion of the cross-examination of Mrs. Mullinax reads:

Q: Now, you and your husband are in cahoots in this lawsuit, aren't you?

A: As far as he is helping me. Is that what you mean?

Q: Y'all working together?

A: Well, he got all the stuff up, yes. But I'm the one that's bringing the lawsuit.

Mrs. Mullinax stated she was bringing the suit because she was the "one that needed the money." Mrs. Mullinax's income is $481 per month, and Mr. Mullinax makes $1100 in disability payments per month.

The trial judge granted the defendants' motion for directed verdict "based on this suit being brought in a collusive fashion." He ruled that "[A]ll inferences that can be drawn from the evidence ... leave me only one conclusion. I'm taking this in the light most favorable to you, the nonmoving party, that this is collusion as a matter of law ... the suit is her's [sic] in name only."

LAW/ANALYSIS

On appeal from 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. Whelan v. Welch, 304 S.C. 548, 405 S.E.2d 836 (Ct.App.1991); Unlimited Services, Inc. v. Macklen Enter., Inc., 303 S.C. 384, 401 S.E.2d 153 (1991). The trial court must eliminate from its consideration all evidence contrary to or in conflict with the evidence favorable to the nonmoving party and give to the nonmoving party every favorable inference that the facts reasonably suggest. Collins & Sons Fine Jewelry, Inc. v. Carolina Safety Sys., Inc., 296 S.C. 219, 371 S.E.2d 539 (Ct.App.1988). Appellant claims there was no evidence of covin or collusion between Mr. & Mrs. Mullinax and asserts that if there was collusion, it was a question of fact for the jury. Appellant also asserts that the statute does not prohibit collusion between the gambler and the third party plaintiff.

Appellant brought this action under S.C.Code Ann. § 32-1-20 (1991). The statute allows a third party to sue for recovery of the gambling losses of another when the loser fails to sue for those losses. It should be read in conjunction with S.C.Code Ann. § 32-1-10 (1991). ³ Section 32-1-20 reads:

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 and such action or suit as aforesaid, to sue for and recover the same and treble the value thereof ... (emphasis added).

Our Supreme Court discussed § 32-1-20 in Ardis v. Ward, 321 S.C. 65, 467 S.E.2d 742 (1996). ⁴ In Ardis, a husband sued to recover the gambling losses of his wife. The Ardis court held that an action under § 32-1-20 was not limited to the same statute of limitations found in the companion statute, § 32-1-10. The court did not address the implication of the terms "covin or collusion." The court did, however, discuss the policy behind the gambling loss recovery statute, stating "[T]his portion of the act, when read with the earlier provision, indicates that the General Assembly contemplated a policy which prevents a gambler from allowing his vice to overcome his ability to pay. The legislature adopted a policy to protect a citizen and his family from the gambler's uncontrollable impulses." Ardis at 69, 467 S.E.2d at 744, quoting Berkebile v. Outen, 311 S.C. 50, 55, 426 S.E.2d 760, 763 (1993).

The Berkebile court also noted that this policy is "similar to the policies which underlie the adoption of limits to the amount of alcohol someone may drink in public, and the speed one may use on the highway." Berkebile at 55, 426 S.E.2d at 763. "There is a long-standing policy in South Carolina to protect a family from the vices and excesses of a spouse. The old dower and later elective share provisions of the South Carolina Probate Code are prime examples of State policies protecting a family unit from becoming society's wards." Berkebile at 56 n. 3, 426 S.E.2d at 763 n. 3.

We are mindful that the primary or fundamental rule of statutory construction a court must follow is to ascertain and give effect to the legislature's intention or purpose as expressed in the statute. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975). Unless there is something in a statute requiring a different interpretation, the words used in the statute must be given their ordinary meaning. Hughes v. Edwards, 265 S.C. 529, 220 S.E.2d 231 (1975). Covin is "a secret conspiracy or agreement between two or more persons to injure or defraud another." Collusion is "an agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or a lawful means for the accomplishment of an unlawful purpose." Black's Law Dictionary 366, 264 (6th ed. 1990).

While there are no South Carolina Supreme Court cases that have addressed the implication of "covin or collusion" in § 32-1-20, an examination of other jurisdictions proves helpful. In Kizer v. Walden, 198 Ill. 274, 65 N.E. 116 (1902), the Illinois Supreme Court considered a case under a gambling loss recovery statute that is substantially similar to § 32-1-20. The action was brought by the brother of one who lost money gambling, and the court considered the application of "covin or collusion" in the statute. The court found that 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 court noted that "[w]here the right of recovery depends upon the existence of certain extrinsic facts about which the evidence is conflicting, the court has no right to take the case from the jury." Kizer, 65 N.E. at 119. The court stated the statute:

refer[s] to covin...