Campbell v. Mutual Ben. Health & Accident Ass'n, of Omaha, Neb.

• Decision Date: 08 June 1931
• Docket Number: 13166.
• Citation: 159 S.E. 490,161 S.C. 49
• Parties: CAMPBELL v. MUTUAL BEN. HEALTH & ACC. ASS'N, OF OMAHA, NEB., et al.
• Court: South Carolina Supreme Court

159 S.E. 490

161 S.C. 49

CAMPBELL v. MUTUAL BEN. HEALTH & ACC. ASS'N, OF OMAHA, NEB., et al.

No. 13166.

Supreme Court of South Carolina

June 8, 1931

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by P. D. Campbell against the Mutual Benefit Health & Accident Association of Omaha, Nebraska, and another. From an order denying a motion for change of venue, defendants appeal.

Affirmed.

Sloan & Sloan, of Columbia, for appellants.

Andrew J. Bethea and E. J. Best, both of Columbia, for respondent.

BLEASE C.J.

This action for libel was commenced in the court of common pleas for Richland county. The defendant Mutual Benefit Health & Accident Association, of Omaha, Neb., is a foreign corporation, engaged in insurance business in several counties of this state. Service of the summons and complaint on the defendant company was effected under the provisions of section 4082, volume 3, Code of 1922, by delivery of the papers to the insurance commissioner, who accepted service of the process.

The defendant Williams is a resident of Greenville county, this state.

The defendants moved in the lower court that the place of trial be transferred from the court of common pleas of Richland county to that court for Greenville county, on the ground that the insurance company was a foreign corporation and its codefendant was a resident of Greenville county. At the hearing before the circuit judge on the motion, it was shown by affidavit submitted for the plaintiff, and seemingly the fact was admitted by the defendants, that the insurance company had an office and an agent in the city of Columbia Richland county, for the purpose of transacting its business. The circuit judge refused to grant the motion to change the venue, and from his order thereon both defendants have appealed to this court.

The contention of the appellants, gathered from argument of their counsel, is that the trial of the cause should be had in Greenville county, since the individual defendant, Williams is a resident of that county, and the other defendant, the insurance company, is a foreign corporation, not domesticated, although it has an office and agent in Richland county.

Counsel for the appellants concede the correctness of the holding announced in Tobin v. Railroad Co., 47 S.C. 387, 25 S.E. 283, 58 Am. St. Rep. 890, followed thereafter in many other cases, to the effect that a domestic corporation and an individual defendant may be sued together in any county in which the corporation has offices and agents, although the individual defendant may reside in some other county. Dennis v. Railroad Co., 86 S.C. 258, 68 S.E. 465; Hayes v. Seaboard Air Line Railway Co., 98 S.C. 6, 81 S.E. 1102; and Smyer v. Southern Railway Co., 110 S.C. 292, 96 S.E. 483. But they say that the principle so well established by those cases does not apply to a foreign corporation, which has not been domesticated, and, in support of their position, they mainly depend upon the case of Barfield v. Southern Cotton Oil Co. et al., 87 S.C. 322, 69 S.E. 603.

In the Barfield Case, decided in 1910, this court, through Mr. Justice Hydrick, under the provisions of what was then section 146 of the Code of 1902 (section 378, 1922 Code), held: "An action against a foreign corporation and a resident of this State, in which the venue is laid in a county other than that of the resident, should, on his motion, be transferred to the county of his residence for trial." (Syllabus).

The facts were meagerly stated in the report of the Barfield Case. We get information about them, however, from the opinion of Mr. Chief Justice Gary in Hayes v. S. A. L Railway Co., 98 S.C. 6, 81 S.E. 1102. There, the whole court, Mr. Justice Hydrick participating in the decision, said of the Barfield decision: "In that case, however, it was not made to appear...