Barfield v. J.L. Coker & Co.

• Decision Date: 09 January 1906
• Parties: BARFIELD v. J. L. COKER & CO.
• Court: South Carolina Supreme Court

53 S.E. 170

73 S.C. 181

BARFIELD v. J. L. COKER & CO.

Supreme Court of South Carolina

January 9, 1906

Appeal from Common Pleas Circuit Court of Lee County; Dantzler Judge.

Action by D. J. Barfield against J. L. Coker & Co. Judgment for defendant. Plaintiff appeals. Reversed.

Cooper & Fraser, F. G. McLeod, and Woods & Macfarlan, for appellant. J. B. McLaughlin and R. W. McLendon, for respondents.

JONES J.

The above-entitled cause was heard with the case of J. L. Coker & Co., plaintiffs appellants, against D. J. Barfield, defendant respondent, upon a single "case" embracing appeals in both cases; but for convenience and clearness we will consider the appeals separately. This action was commenced in Lee county, on the 11th day of August, 1903, to recover damages for an alleged unlawful seizure of plaintiff's crops by defendants, and an alleged unlawful and malicious arrest of plaintiff at the instigation of defendants. The cause was first tried at Bishopville, before Judge Purdy and a jury, on March 9, 1904, and resulted in a verdict for plaintiff against defendants J. L. Coker & Co. for $966.67 but said verdict was set aside, and a new trial granted by Judge Purdy. Thereafter, on September 16, 1904, the cause was again tried before Judge Dantzler and a jury, and resulted in a verdict against all the defendants for $500.

1. The first question presented by this appeal which we notice, is raised by the ninth exception, which alleges error in the refusal of Judge Purdy to change the place of trial from Lee county to Darlington county. The motion was originally made on two grounds: (1) That Darlington county and not Lee county, was the proper place of trial; (2) to promote the convenience of witnesses and the ends of justice. This action falls within the class provided for in section 146 of the Code of Civil Procedure of 1902, which declares: "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." It is conceded that J. L. Coker & Co. are residents of Darlington county; but the plaintiff, who is a resident of Lee county, proceeded on the theory that defendant Woodham was a resident of Lee county, and the circuit court sustained this view. The question of a person's place of residence depends upon his intention, as evidenced by his acts and declarations. This is a question of fact, and the finding of the circuit court thereon is conclusive, if there is any evidence to support it. The defendant Woodham made affidavit as follows: "This defendant's family are now, and have been since the county was formed, in that portion of Lee county that was taken from Darlington county. That this defendant has been employed continuously and been engaged in business at Hartsville, in Darlington county. That he only visits his family where they live in Lee county, and otherwise spends all his time in said county of Darlington. That his business is at Hartsville, and he resides at Hartsville, in Darlington county." J. J. Lawton, one of the firm of J. L. Coker & Co., made affidavit "that the other defendant to the action, Milton Woodham, has been for quite a time employed at Hartsville, where he remains constantly to deponent's knowledge, except to visit his family in Lee county." One of the essential elements to constitute a particular place as one's domicile or principal place of residence is an intention to remain permanently, or for an indefinite time, in such place. The affidavits submitted certainly did not show conclusively that Lee County was not defendant Woodham's domicile. The two facts stated--the place at which defendant conducted his business, Darlington county, and the place where his family, with whom he was on amicable terms, resided, Lee county--were but evidentiary matters, in support of opposite conclusions on the question at issue. We cannot say the circuit court committed error of law in holding Lee county as a place in which defendant Woodham resided with his family, notwithstanding he did business in Darlington county, which occupied the greater part of his time. It was incumbent on the defendant, as the moving party, to satisfy the court that he was not a resident of Lee county.

2. With respect to the second ground for a change of venue, namely, for the convenience of witnesses and to promote the ends of justice, we need only say that the determination of this question was within the discretion of the circuit judge, and it has not been shown that he committed any error of law in reaching his conclusion. McFail v. Barnwell Co., 54 S.C. 370, 32 S.E. 417.

3. After the first trial, which resulted in a verdict for the plaintiff against J. L. Coker & Co., which was set aside by Judge Purdy, motion to change the place of trial was made before Judge Dantzler, on the ground that said verdict was in favor of defendant Woodham, and that the granting of the new trial only operated to continue the case against J. L. Coker & Co. alone, and therefore, since the sole defendants, J. L. Coker & Co., were residents of Darlington county, that county was the proper place for trial. The circuit court refused the motion, holding that the granting of the new trial by Judge Purdy operated to continue the case against both defendants. This ruling is also the basis of the seventh exception. The ruling of the circuit court was correct. Whatever may have been the effect of the verdict against J. L. Coker & Co. alone, if final judgment had been entered and retained thereon, in exonerating defendant Woodham from another or further suit thereon, it is clear that the setting aside of the verdict and granting a new trial operated to restore the status of the case as it existed before trial. If a verdict against J. L. Coker & Co. alone implied a finding in favor of defendant Woodham, the setting aside of that verdict necessarily removed the implication. It cannot be said that the foregoing conclusion deprives defendants J. L. Coker & Co. of the right to be tried in the county of their residence by joining them in the action with a mere nominal defendant or man of straw, because the complaint expressly charges that the acts of trespass alleged were committed by the defendants, including Woodham.

The first exception complains of error in overruling the demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The specifications of demurrer are as follows: (1) As to the first cause of action, that there were no allegations of actionable damages therein; (2) as to the second cause of action, that while there was a specific allegation that there was legal process, yet there was no allegation that the process had terminated, or that it had terminated in favor of the defendant; (3) that the allegations of trespass are against the firm of J. L. Coker & Co., and that the firm could not commit the torts complained of.

The complaint in question is as follows: "The plaintiff complaining of the defendants, alleges: (1) That defendants, J. L. Coker, J. J. Lawton, D. R. Coker, and J. L. Coker, Jr., are copartners carrying on a general mercantile business at Hartsville, S. C., under the firm name of J. L. Coker & Co. (2) That on or about the _______ day of November, 1902, the defendants illegally, unlawfully, willfully, wantonly, and without cause entered the premises in peaceable possession of this plaintiff, in the county and state aforesaid, and did illegally, unlawfully, willfully and wantonly, in open violation of plaintiff's legal rights, seize and take from the possession of this plaintiff, and carry away, a certain lot of corn, about fifty (50) bushels, of the value of fifty ($50) dollars; about ten bushels of peas, of the value of nine ($9) dollars; about one thousand (1,000) pounds of fodder, of the value of twelve ($12.50) dollars and fifty cents; and about twenty (20) bushels of cotton seed, of the value of six ($6) dollars--all of which was the property of this plaintiff, in his peaceable possession, upon which no incumbrance existed in favor of the defendants, yet the defendants, regardless of the plaintiff's rights as a citizen, illegally, unlawfully, willfully, and wantonly trespassed upon the premises of this plaintiff, seized and carried away the above-described property, without the consent of the plaintiff and in his absence and to the terror of his family. (3) That at the time the above-described illegal, unlawful, willful, and wanton acts were committed by the defendants above named, this plaintiff was also illegally, unlawfully, willfully, wantonly, and without reasonable cause arrested at the instigation of the above-named defendants, and through their agency his liberty was taken from him, and he was taken in charge by one who claimed to be a constable, but who was simply an agent of the defendants, and was illegally, unlawfully, without any right or authority, and against his will, carried into another county, about fifteen miles from plaintiff's home, and there willfully and wantonly kept in custody, bereft of his liberty, and injured in his credit, until dark, when he was discharged from custody at the instigation of the above-named defendants, when alone, weary, and tired, he was forced to walk fifteen miles back to his home, from whence, without cause and legal rights, he had been seized and carried from his wife and children, who were very much excited and terrified by the illegal acts of the defendants. That all the above named indignities and acts, which were heaped upon plaintiff with an utter and reckless disregard of his legal rights, were committed by the above mentioned defendants in a high-handed, willful, wanton, and illegal...