Becker v. Uhe, 16618

• Decision Date: 10 April 1952
• Docket Number: No. 16618,16618
• Citation: 221 S.C. 334,70 S.E.2d 346
• Court: South Carolina Supreme Court
• Parties: BECKER v. UHE et al.

Page 346

70 S.E.2d 346

221 S.C. 334

BECKER v. UHE et al.

No. 16618.

Supreme Court of South Carolina.

April 10, 1952.

James P. Mozingo, III, F. Turner Clayton, B. R. Greer and John L. Nettles, all of Darlington, for appellant.

Irvine F. Belser, Sr., Irvine F. Belser, Jr., Walter J. Bristow, Jr., all of Columbia Simonson & O'Brien, Lynbrook, N. Y., for respondent.

OXNER, Justice.

This action was brought in the County Court of Richland County by Henry B. Becker to recover damages for personal injuries received in a collision between an automobile and a tractor trailer, which occurred in Darlington County on April 8, 1950. Named as defendants were Reinhard Uhe, driver of the automobile, T. G. Chaplin, owner of the tractor trailer, Robert A. Chapman, driver of the tractor, the General Accident, Fire and Life Assurance Corporation of Philadelphia, the statutory insurer of T. G. Chaplin, and the tractor trailor. The plaintiff alleged in his complaint that he was riding in said automobile as a paying passenger and that his injuries resulted from the joint and concurrent negligence and recklessness of the drivers of the two vehicles. The case comes before us on an appeal from an order of the Judge of the County Court of Richland County refusing a motion by defendants, other than defendant Reinhard Uhe, for a change of venue from Richland County to Darlington County, upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change.

We shall first consider respondent's motion to dismiss the appeal upon the grounds (1) that the exception does not comply with Rule 4, Section 6 of this Court, and (2) that appellants' brief violates Rule 8, Section 7, in that it contains facts not embodied in the record.

There is only one exception, which reads as follows:

'Did the County Judge commit error in refusing to grant defendants' motion for a change of place of trial on the ground that defendant failed to meet the burden of proof required to show that the ends of justice would be promoted by the change and that the conveniences of witnesses would be served by a change of place of trial?'

It will be noted that the foregoing exception is framed as a question and makes no assignment of error. Obviously it does not meet the requirements of Rule 4, Section 6. However, the objection is of a technical nature and it is apparent that respondent, as shown by his brief, was not misled as to the question intended to be raised. It further appears from an examination of the record that there is merit in the appeal. Under these circumstances, we think that in the exercise of our discretion, the breach of the rule should be waived and the appeal considered on its merits. This practice has been frequently followed in criminal cases. It has also been held that technical violations of our rules may be waived in civil cases. Jackson v. Carter, 128 S. C. 79, 121 S.E. 559; Pate v. C. I. T. Corporation, 199 S. C. 244, 19 S.E.2d 107.

It is also true that appellants' brief embodies numerous facts which do not appear in the transcript of record, in violation of Rule 8, Section 7. While this breach of the rule is condemned, we do not think the appeal should be dismissed. Of course, the facts improperly stated in the brief will not be considered.

For the reasons stated, the motion to dismiss the appeal is denied.

Turning now to the merits of the controversy, it is conceded that respondent had the right to institute this action in Richland County because (1) the defendant insurance company is a foreign corporation transacting business and having agents and offices in Richland County, and (2) defendant T. G. Chaplin, who is engaged in the transportation of goods for hire under a certificate issued by the Public Service Commission, operates in Richland County. The contention of appellants is that they are entitled to a change of venue from Richland County to Darlington County upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change. Section 426 of the 1942 Code.

The pleadings and supporting affidavits of the parties disclose the following: Plaintiff and defendant Reinhard Uhe reside in New York State. Plaintiff has four witnesses who also reside there. Defendants T. G. Chaplin and Robert A. Chaplin are residents of Darlington County, South Carolina, and all their witnesses reside in that county. The accident occurred in Darlington County on Highway No. 15, about ten miles north of Hartsville. None of the parties reside in, nor is there a single witness from Richland County.

Since all of the South Carolina witnesses reside in Darlington County, it would certainly serve the convenience of the resident witnesses to change the venue to that county, and it would tend to promote the ends of...