Deese v. Williams

• Decision Date: 18 April 1960
• Docket Number: No. 17647,17647
• Citation: 113 S.E.2d 823,236 S.C. 292
• Parties: Fred A. DEESE, Respondent, v. J. N. WILLIAMS and South Carolina Highway Department of which J. N. Williams is, Appellant.
• Court: South Carolina Supreme Court

Page 823

113 S.E.2d 823

236 S.C. 292

Fred A. DEESE, Respondent, v. J. N. WILLIAMS and South Carolina Highway Department of

which J. N. Williams is, Appellant.

No. 17647.

Supreme Court of South Carolina.

April 18, 1960.

Lee & Moise, Sumter, for appellant.

Murchison, West & Marshall, Camden, for respondent.

LEGGE, Justice.

Plaintiff, a resident of Kershaw County, seeks in this action to recover damages for personal injuries alleged to have been sustained by him as the result of a collision in Lancaster County in which three motor vehicles were involved, viz.: an automobile that he was driving, a truck of the defendant South Carolina Highway Department, and a truck of the defendant J. N. Williams, who is a resident of Lee County. He charges in his complaint that his injuries were caused by the joint negligence and recklessness of the defendants, their agents and servants. Venue was laid in Kershaw County, and Williams appeals from an order of the circuit court refusing his motion to change it to Lee County.

That the Highway Department is a material defendant and joined in good faith is not questioned. Appellant's contention is simply this: that the statute (Code 1952, Section 33-229) permitting actions in tort against it should not be so construed as to deprive an individual codefendant in such an action of his right to trial in the county of his residence.

In the early days of the common law, when jurors were in fact witnesses, every action was required to be brought in the county in which the cause of action arose. Later, distinction was made between an action essentially local and one that was transitory in nature. The former was triable only where the cause of action arose; the latter, wherever personal service could be made upon the defendant. And that rule was rigidly enforced at common law. 56 Am.Jur., Venue, Section 3.

Under our form of government the legislative power of the General Assembly is subject only to such restrictions as are contained in the Constitution of this State or of the United States. Byrd v. Lawrimore, 212 S.C. 281, 47 S.E.2d 728; State ex rel. Thompson v. Seigler, 230 S.C. 115, 94 S.E.2d 231. There is no constitutional requirement that any action be brought in the county of the defendant's residence; and it is therefore within the power of the General Assembly to make such provisions for venue as it may deem proper, so long as they do not, by arbitrary and unreasonable discrimination against particular persons, violate the fundamental guaranties of due process and equal protection. 12 Am.Jur., Constitutional Law, Section 545; 56 Am.Jur., Venue, Section 4; Allen v. Smith, 1911, 84 Ohio St. 283, 95 N.E. 829, Ann.Cas.1912C, 611. No such constitutional impediment is suggested here.

Our statute (Code 1952, Section 10-303) provides that transitory actions, such as the present, shall be tried in the county in which the defendant resides at the time of the commencement of the action. Its language is mandatory, and the right that it gives to the defendant is a valuable and substantial one, Fordham v. Fordham, 223 S.C. 401, 76 S.E.2d 299; Lee v. Neal, 233 S.C. 206, 104 S.E.2d 291. But it is within the power of the General Assembly, subject to constitutional limitations, to restrict that right, or even to abolish it. In its original enactment in 1870 (XIV Stat. at L. 453) as Section 148 of the new Code of Procedure, it was restricted by the provision that it should be subject to the power of the court to change the place of trial when (Section 149) there was reason to believe that an impartial trial could not be had in the county of the defendant's residence or when the convenience of witnesses and the ends of justice would be promoted by such change. It was further, and as a matter of practical necessity, restricted by the amendment of March 17, 1875 (XV Stat. at L. 913), which permitted the plaintiff, where there were several defendants not all residing in the same county, to lay the venue in any county in which one or more of the defendants resided when the action was commenced.

Although no legislation specifies the place of trial of a transitory action against a corporation, we have construed Section 10-303 as applicable in such cases and have held that for the purpose of venue a corporation is a resident not only of the county where its principal office is located, but also of any county in which it has an office and conducts its corporate business. Tobin v. Chester & L. Narrow-Gauge R. Co., 47 S.C. 387, 25 S.E. 283, 58 Am.St.Rep. 890; McGrath v. Piedmont Mutual Ins. Co., 74 S.C. 69, 54 S.E. 218; Elms v. Southern Power Co., 78 S.C. 323, 58 S.E. 809; Tucker v. Ingram, 187 S.C. 525, 198 S.E. 25; Sanders v. Allis Chalmers Mfg. Co., S.C., 111 S.E.2d 201.

Since such corporate activity within a county constitutes residence for venue purposes, it follows that if there be two defendants in a transitory action, one corporate and the other individual, resident in different counties, the plaintiff has the same choice of venue that would have been available to him had both defendants been natural persons. Hayes v. Seaboard Air Line Ry., 98 S.C. 6, 81 S.E. 1102; Smyer v. Southern R. Co., 110 S.C. 292, 96 S.E. 483; Campbell v. Mutual Benefit Health & Accident Ass'n, of Omaha, Neb., 161 S.C. 49, 159 S.E. 490; Tucker v. Ingram, supra.

By the Act of April 14, 1925 (XXXIV Stat. at L. 287), which first permitted actions in tort against the State Highway Department, such actions were limited to those for 'injury or damage to person or property through a defect or negligent repair of any road, ferry, causeway or bridge or by reason of collision with any truck or other instrumentality' under its control and supervision; and such actions were required 'to be brought and tried in the...