Bethea v. Home Furniture Co.

• Decision Date: 27 November 1937
• Docket Number: 14573.
• Citation: 194 S.E. 10,185 S.C. 271
• Parties: BETHEA v. HOME FURNITURE CO.
• Court: South Carolina Supreme Court

194 S.E. 10

185 S.C. 271

BETHEA v. HOME FURNITURE CO.

No. 14573.

Supreme Court of South Carolina

November 27, 1937

Appeal from Common Pleas Circuit Court of Dillon County; E. C Dennis, Judge.

Action by Joe Bethea against the Home Furniture Company. Judgment denying defendant's motion for a change of venue, and defendant appeals.

Affirmed.

The order of Judge Dennis follows:

The above-entitled matter came before me on the 4th day of August, 1937, on motion of the defendant to change the venue from Dillon county to Florence county, on the grounds that the defendant was a Florence county corporation and had its only headquarters in Florence, S. C.

The plaintiff admitted the residence of the defendant, but resisted the motion, on the ground that the complaint states a cause of action for trepass on realty, an injury to real estate, and a violation of possession of plaintiff, and therefore falls under section 420 of the Code vol. 1, of 1932, and is triable in the county where the subject of the action is situate, to wit, Dillon county.

In substance the complaint alleges as follows:

"Plaintiff is informed and believes that on the -------- day of June 1937, while this plaintiff was absent, the said W. H Capps, as Agent for the Home Furniture Company, came to the home of the plaintiff, entered his back door, took out of the safe the dishes, etc., put them on the floor, took a hammer or hatchet and forcibly opened plaintiff's locked front door, ripping off the hasp in which the lock fits in a violent and angry manner, and without reason or excuse therefor, and carried away the said safe of the plaintiff; all of which he did willfully and wantonly over the protest of plaintiff's wife.

That the entry into and the breaking out of the plaintiff's home, and carrying away of plaintiff's property by the said W. H. Capps, agent for the said Home Furniture Company, was a wilful and wanton trespass upon the property and premises of the plaintiff, was a violation of the law and every decent principle, was unwarranted and inexcusable."

In the damnum clause the plaintiff states he has been damaged in the sum of $6,000 on account of the facts aforesaid alleged.

Undoubtedly the complaint is one for trespass upon real estate.

The Supreme Court of this state has held:

"An action for damages for trespass upon real property which would have been sufficient to sustain the old action of trespass quare clausum fregit must be tried in the county where the land lies, without regard to the residence of the defendant. Henderson v. Bennett, 58 S.C. 30, 36 S.E. 2. * * *

These allegations would have been amply sufficient to sustain the old action of quare clausum fregit. Connor v. Johnson, 59 S.C. 115, 37 S.E. 240. Beaufort Land & Investment Co. v. Lumber Company, 86 S.C. 358, 68 S.E. [637] 645, 30 L.R. A. (N.S.) 243."

Pierce v. Marion County Lumber Co., 103 S.C. 261, 262, 88 S.E. 135, 136. Henderson v. Bennett, supra.

The old action of "trespass quare clausum fregit" is an action for damages for the unlawful entre or trespass upon real estate. It is alleged in the complaint that there was an unlawful entre into the home of the plaintiff; the plaintiff could maintain the action for the unlawful entre alone. The damage alleged to the home was also an injury to the plaintiff's possession. Damage to the building could also, it is true, be a damage...