Graham v. Beverly, 17578

Citation235 S.C. 222,110 S.E.2d 923
Decision Date05 November 1959
Docket NumberNo. 17578,17578
PartiesJulius Pink GRAHAM, Appellant, v. G. F. BEVERLY, Respondent.
CourtUnited States State Supreme Court of South Carolina

J. Ralph Gasque, William H. Seals, Marion, for appellant.

J. Reuben Long, Conway, for respondent.

LEGGE, Justice.

On May 30, 1958, a collision occurred in Marion County, about four and a half miles south of the city of Marion, between a Ford truck owned by the plaintiff, Graham, and a Chevrolet truck owned by the defendant, Beverly. The plaintiff was driving his truck, and one Ira Smith was a passenger in it. The defendant's truck was driven by his agent, Sam Parker, who was alone. The plaintiff and his passenger live in Marion County; the defendant and his driver live in the adjoining county of Horry. This action was commenced in Marion County. Thereafter the defendant moved for change of venue to Horry County because of his residence there; and the plaintiff at the same time moved that should the defendant's motion be granted the venue be changed back to Marion County for the convenience of witnesses and the promotion of the ends of justice. Defendant's motion was granted; plaintiff's motion was refused, and from the order refusing it he has appealed.

It is not disputed that the defendant resides in Horry County. The only issue here is whether the circuit judge abused his discretion in refusing to grant the plaintiff's motion. That motion was based upon twenty-one affidavits. One was by the passenger Smith, to the effect that he lives 'just a few miles from Marion'; that he has employed counsel to institute suit for him; that he has about twenty or twenty-five witnesses, all of whom reside in the city of Marion; that the distance from Marion (the county seat of Marion County) to Conway (the county seat of Horry County) is 33 miles; and that he and his witnesses would be greatly inconvenienced if they should have to go to Conway 'for the trial of these cases' and possibly have to attend court there for a day or so. Of the other twenty affiants:

James McCall, of Marion, did not see the accident, but went to the scene later and took photographs. The gist of his affidavit is that it would be more convenient and less expensive for him to testify in Marion than in Conway.

Eleven are members of the Marion Fire Department who went to the scene after the accident and helped to extricate the plaintiff from his truck. Each avers that it would be 'more convenient' for him to testify in Marion than in Conway, and that a trial in Conway would 'greatly inconvenience' the fire department and would leave the Marion area without fire protection.

One operate a funeral home and an ambulance service in Marion. He says that to travel to Conway and testify there would greatly inconvenience him and his business.

Another is the ambulance driver, whose affidavit is to the same effect.

One is the Chairman of the Board of Commissioners for Marion, who is also Supervisor of the Marion County Chain Gang; another is the deputy sheriff of Marion County; another is the owner of the wrecker; two are physicians, of whom one, living in Florence, attended the passenger Smith some six weeks after the accident, and the other, living in Marion, was called to the scene of the accident to administer first aid, and later treated the passenger Smith for his injuries.

One is a neighbor of the plaintiff and Smith. He lives about 6 miles from Marion and about 28 miles from Conway. His affidavit is to the effect that he arrived at the scene of the accident a few minutes after it had happened, and that he is informed that Mr. Smith and the plaintiff 'were involved in the wreck'.

Each of the affiants before mentioned says that a trial in Conway would cause him inconvenience. Respondent offered no affidavits in opposition to those presented by appellant. There appear to have been no eyewitnesses to the collision except the occupants of the two vehicles.

Suggesting that appellant's witnesses would not be seriously inconvenienced by having to attend trial in Conway rather than in Marion, since the distance between the two cities, by paved highway, is only 33 miles, respondent nevertheless concedes that appellant has carried the burden of proving the first of the two requirements of the Code provision, Section 10-310(3),...

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8 cases
  • McKissick v. J.F. Cleckley & Co.
    • United States
    • South Carolina Court of Appeals
    • June 6, 1996
    ...the trial judge's decision on appeal unless we find a manifest abuse of discretion resulting in an error of law. Graham v. Beverly, 235 S.C. 222, 110 S.E.2d 923 (1959). Moreover, the error of law must be so opposed to the trial judge's sound discretion as to amount to a deprivation of the l......
  • Jeter v. South Carolina Dept. of Transp., 26168.
    • United States
    • South Carolina Supreme Court
    • June 19, 2006
    ...the trial judge's decision on appeal unless a manifest abuse of discretion is found resulting in an error of law. Graham v. Beverly, 235 S.C. 222, 110 S.E.2d 923 (1959). Moreover, the error of law must be so opposed to the trial judge's sound discretion as to amount to a deprivation of the ......
  • People v. Jones
    • United States
    • California Court of Appeals Court of Appeals
    • August 7, 1972
    ...Cal.App. 641, 129 P. 957 [1912]. And in other states: Woosley v. Commonwealth, 293 S.W.2d 625, 626 [Ky.App., 1956]; Graham v. Beverly, 235 S.C. 222, 110 S.E.2d 923, 925 [1959]; Black's Law Dictionary, 4th ed., 'vicinage.') However, our concern here is with the federal Constitution, not with......
  • Garrett v. Charleston & W. C. Ry. Co.
    • United States
    • South Carolina Supreme Court
    • February 25, 1960
    ...S.E.2d 433; McCauley v. McLeod, 230 S.C. 380, 95 S.E.2d 611; Perdue v. Southern Railway Company, 232 S.C. 78, 101 S.E.2d 47; Graham v. Beverly, S.C., 110 S.E.2d 923. Motions of this character are addressed to the discretion of the lower Court, and its ruling on such matters will not be dist......
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