Asbestosis Cases 78-CP-06-105, In re, CP-06-105

• Citation: 274 S.C. 421,266 S.E.2d 773
• Decision Date: 26 March 1980
• Docket Number: CP-06-105,No. 21173,21173
• Court: United States State Supreme Court of South Carolina
• Parties: In re ASBESTOSIS CASES (34 cases) 78-

Page 773

266 S.E.2d 773

274 S.C. 421

In re ASBESTOSIS CASES (34 cases) 78-CP-06-105.

No. 21173.

Supreme Court of South Carolina.

March 26, 1980.

N. Heyward Clarkson, III, and Daniel B. White of Rainey, Britton, Gibbes & Clarkson, Greenville, for appellant.

Terry E. Richardson, Jr., of Blatt & Fales, Barnwell, for respondent.

William A. Horger, Orangeburg, Robert H. Hood, Edward D. Buckley, Robert A. Patterson, William H. Grimball, Bachman S. Smith, III, Henry B. Smythe, Jr., Michael T. Cole, and Joseph R. Young, Charleston, Robert R. Carpenter, Rock Hill, James W. Alford and F. Barron Grier, III, Columbia, and James B. Pressly, Jr., Greenville, for defendants.

RHODES, Justice:

This is an appeal from a denial of a change of venue motion in the consolidated asbestosis cases ¹ in Barnwell County, in which appellant Covil Corporation (Covil) is a party defendant in a number of cases. We reverse.

These product liability suits allege that respondents, as industrial insulators, were exposed during their years of employment to asbestos insulation materials manufactured or sold by the various defendants, resulting in their serious injury or death. Three theories of liability are generally asserted in the complaints: negligence, breach of warranty, and strict liability. All essentially state that defendants are liable because they failed to warn plaintiffs of the damages associated with asbestos insulation products, dangers which were allegedly known by defendants or which should have been known.

Of the defendants, only Covil and North Brothers, Inc., are distributors-suppliers of insulation products, all others being either miners of asbestos or manufacturers of asbestos products. Covil and North Brothers are also contractors in the insulation trade. All defendants are foreign corporations with the exception of Covil, which is a South Carolina corporation with its only place of business in Greenville, South Carolina. Covil has no office or agent for the transaction of any business in Barnwell County and, further, has no employees of any kind assigned to work in that county. It owns no property, either real or personal, in Barnwell County and, since the institution of these lawsuits, has had no contracts or reoccurring business to be performed there. The facts recited in this paragraph are not in dispute, having been taken from the agreed statement of the parties.

Covil seeks to change venue from Barnwell County to Greenville County, the place of its corporate residence. Venue over corporations may be predicated on either section 15-7-30, South Carolina Code (1976) or section 15-9-210, South Carolina Code (1976). Section 15-7-30 provides as follows:

In all other cases the action shall be tried in the county in which the defendant resides at the time of the commencement of the action. If there be more than one defendant then the action may be tried in any county in which one or more of the defendants to such action resides at the time of the commencement of the action. If none of the parties shall reside in the State the action may be tried in any county which the plaintiff shall designate in his complaint. This section is subject however to the power of the court to change the place of trial in certain cases as provided by law. (Emphasis added.)

Section 15-9-210 provides:

If the suit be against a corporation, the summons shall, except as otherwise expressly provided, be served by delivering a copy thereof to the president or other head of the corporation, or to the secretary, cashier or treasurer or any director or agent thereof; provided, further, that, in the case of domestic or foreign corporations, service as effected under the terms of this section shall be effective and confer jurisdiction over any domestic or foreign corporation in any county where such domestic or foreign corporation shall own property and transact business, regardless of whether or not such domestic or foreign corporation maintains an office or has agents in that county. (Emphasis added.)

It is the contention of Covil that the emphasized provisions of 15-9-210 are not applicable to the case at bar, its argument being that the emphasized provisions of section 15-7-30 are exclusively applicable in this case and all cases involving multiple defendants.

Prior to 1964, that portion of section 15-9-210 providing that venue is proper where a corporation transacts business and owns property was applicable only to domestic corporations. Unless a foreign corporate defendant maintained an agent and office for the transaction of business in a county within the state, Campbell v. Mutual Benefit Health & Accident Ass'n, 161 S.C. 49, 159 S.E. 490 (1931), suit against a foreign corporation could be brought in any county designated by a plaintiff in his complaint. S.C.Code § 15-7-30 (1976). Where suit was instituted against both foreign and domestic corporations and the foreign corporation maintained an agent and office for the transaction of business in a particular county, venue would have been proper either within such county or in the county in which the corporate residence of the domestic corporation was situate. See Campbell v. Mutual Benefit Health & Accident Ass'n, supra; Hancock v. Southern Cotton Oil Co., 211 S.C. 432, 45 S.E.2d 850 (1947); Mack v. Nationwide Mut. Ins. Co., 245 S.C. 619, 142 S.E.2d 50 (1965). Where suit was instituted against both foreign and domestic corporations and the foreign corporation maintained no agent or place of business within the state, venue would obviously have been proper only where the domestic corporation maintained its corporate residence.

In 1964, section 15-9-210 was expanded by amendment to provide that venue is proper in a county where a foreign corporate defendant transacts business and owns property. By strictly construing the residence provisions of section 15-7-30 in cases of multiple defendants to be limited to those counties where a domestic corporation has its principal place of business or where a corporation maintains an office and an agent for the transaction of business, as contended for by Covil, this alternative right to venue where a foreign corporate defendant transacts business and owns property would be defeated.

"Where there are different statutes in pari materia, though enacted at different times, and not referring to each other, they are to be taken and construed together as one system, and as explanatory of each other." Fishburne v. Fishburne, 171 S.C. 408, 172 S.E. 426 (1934). Both 15-7-30 and 15-9-210 obviously deal with the same general subject matter. With the above principle in mind, it is logical to interpret "resides" as used in section 15-7-30 ² to include, for the purpose of determining proper venue, those counties in which any corporate defendant "shall own property and transact business" as provided in section 15-9-210. ³

Pursuant to section 15-7-30, if there is more than one defendant in a cause of action, venue is proper in any county in which one or more of the defendants reside. See also Mack v. Nationwide Mut. Ins. Co., supra. As it is our determination that residence for venue purposes includes those counties in which a corporate party owns property and transacts business, if any corporate defendant in the instant case can be shown to own property and transact business within Barnwell County, then venue would be proper under the provisions of section 15-7-30, as augmented by section 15-9-210.

Covil contends that this court, in making a determination whether the activities of a defendant are sufficient to lay venue in a given county, should consider the critical point in time to be the time when the lawsuit is commenced and not the time of accrual of the cause of action. We agree. This court has assumed, without expressly deciding, on at least two occasions that the question of whether venue is proper is to be determined at the time the action is instituted. Lott v. Claussens, Inc., 251 S.C. 478, 163 S.E.2d 615 (1968); Burris Chem., Inc. v. Daniel Constr. Co., 251 S.C. 483, 163 S.E.2d 618 (1968). Since venue is an attempt to provide for the convenience of the parties, the status of the parties when suit is commenced should control. Cf. 2 A.L.R.Fed. 995 (1969) (annotation comparing federal cases which lay venue against a corporation under 28 U.S.C. § 1391 (c) as of the date of filing suit with those that determine venue when the cause of action accrued). This is consistent with section 15-7-30, which, as noted previously, provides in part that "the action shall be tried in the county in which the defendant resides at the time of the commencement of the action." (Emphasis added.)

Pursuant to our determination that the activities of a defendant relative to venue shall be ascertained at the time of the commencement of the action, the stipulation within the statement of facts in the transcript of record that Covil owned no property and transacted no business in Barnwell County since this action was commenced, and the independent evidence offered being insufficient to prove otherwise, it is our determination that with regard to Covil, venue cannot independently be properly located within that county under sections 15-7-30 and 15-9-210. This conclusion, however, does not answer the question of whether Covil is vicariously subject to venue in Barnwell County by reason of the activities within such county of its codefendant, North Brothers, Inc. As we have previously stated, venue as to one defendant confers venue as to all defendants.

Respondents assert that the following supplies sufficient evidence to demonstrate that North Brothers, Inc. both owns property and transacts business in Barnwell County:

(1) the stipulation in the statement of facts that North Brothers "has had" a maintenance contract in Barnwell County;

(2) the affidavit of Herman Cox, an attorney for respondents, concerning the records of North Brothers' transaction of business in ...