Courtney v. Meyer

• Decision Date: 28 April 1943
• Docket Number: 15533.
• Parties: COURTNEY v. MEYER.
• Court: South Carolina Supreme Court

25 S.E.2d 481

202 S.C. 437

COURTNEY v. MEYER.

No. 15533.

Supreme Court of South Carolina

April 28, 1943

Thomas Cain & Black, of Columbia, and Finley & Spratt, of York, for appellant.

Wilson & Wilson, of Rock Hill, and R. B. Hildebrand, of York for respondent.

FISHBURNE Justice.

The plaintiff, a resident of York County, brought this action in the Circuit Court of that county, against the defendant, Mrs Gertrude H. Meyer, a resident of the State of New York seeking the recovery of damages, actual and punitive, on account of injuries sustained in an automobile collision in Chesterfield County, on February 18, 1942.

Service was perfected by serving the summons and complaint upon the Director of the Motor Vehicle Division of the State Highway Department, as agent for the non-resident defendant, pursuant to Section 437 of the 1942 Code, the applicable provisions of which are as follows: "The acceptance by non-resident of the rights and privileges conferred by the laws now or hereafter in force in this state permitting the operation of motor vehicles, as evidenced by the operation of a motor vehicle by such non-resident on the public highways, streets of any incorporated or unincorporated municipality and public roads of this state *** shall be deemed equivalent to the appointment by such non-resident of the director of motor vehicle division of the state highway department, or of his successor in office, to be his true and lawful attorney upon whom may be served all summons or other lawful process in any action or proceeding against him, growing out of, any accident or collision in which said non-resident may be involved *** and said acceptance or operation shall be a signification of his agreement that any such process against him shall be of the same legal force and validity as if served on him personally."

The jurisdiction of the Circuit Court of York County was preliminarily challenged by a motion duly made by the defendant for an order changing the venue to Richland County, the official residence of the Director of the Motor Vehicle Division; or in the alternative to the County of Chesterfield, where the accident is alleged to have occurred. The lower Court held that the venue was properly laid in York County, the residence of the plaintiff, and from that decision this appeal is taken.

The statute (Section 437) providing for substituted service on non-resident motorists does not contain specific provisions as to venue. Hence, recourse must be had to the general laws relating to the subject. The sole question to be determined is whether the action can be maintained in York County, the residence of the plaintiff. Both parties agree that the issue is governed by the following pertinent portion of Section 422, 1942 Code: "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; and if there be more than one defendant, 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; or if none of the parties shall reside in the State, the same may be tried in any county which the plaintiff shall designate in his complaint, subject, however, to the power of the court to change the place of trial in the cases as provided by law: ***."

As pointed out in the order of the lower Court, the above Section has been held in numerous cases to be applicable to corporate as well as individual defendants. According to the contention of the defendant, the clause, "or if none of the parties shall reside in the state," should be construed as meaning none of the parties, plaintiff or defendant. The plaintiff argues that this clause is applicable only to parties defendant.

The Court, in Berry v. Virginia State Insurance Company, 83 S.C. 13, 64 S.E. 859, had this to say:

"The action was brought and the judgment entered in Saluda county where the plaintiff now resides.

"The policy was issued by defendant's agent in Newberry county, in which county the insured property was situated and in which the plaintiff resided at the time of the fire. There was no evidence that the defendant had an agent in Saluda county. Under these facts the defendant, relying on the case of Nixon [& Danforth] v. Piedmont Insurance Co., 74 S.C 438, 54 S.E. 657, submits that the court of common pleas of Saluda county was without jurisdiction of the action. The cases cited, and others like it, involved the question of...