Gregory v. Powell

• Decision Date: 02 April 1945
• Docket Number: 15728.
• Citation: 33 S.E.2d 629,206 S.C. 261
• Parties: GREGORY v. POWELL et al.
• Court: South Carolina Supreme Court

33 S.E.2d 629

206 S.C. 261

GREGORY v. POWELL et al.

No. 15728.

Supreme Court of South Carolina

April 2, 1945

John D. Nock, of Cheraw, and H. L. Smith, of Georgetown, for appellants.

James E. Leppard and Jack Horton, both of Chesterfield, and Murdock M. Johnson, of Camden, for respondent.

OXNER Justice.

This is an appeal from an order of the Circuit Court refusing motions made by appellants under Section 426, Code of 1942, for a change of venue from Kershaw County to Georgetown County upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change.

Claude Albert Gregory died as a result of injuries received on the night of December 13, 1940, when an automobile driven by him collided with a moving freight train of the Seaboard Air Line Railway Company at a crossing near Georgetown, South Carolina, on State Highway No. 521. Respondent, a resident of Kershaw County, as administratrix of his estate, instituted two actions in Kershaw County, one for wrongful death under the statute familiarly known as Lord Campbell's Act Sections 411 and 412, Code of 1942 , and the other under what is commonly referred to as the Survival Act Section 419, Code of 1942. The action under Lord Campbell's Act was brought against the Railway Company and the conductor and brakeman on said train, while the other action was brought only against the Railway Company. It is alleged in the complaints that the death of respondent's intestate was due to appellants' negligence and wilfulness in maintaining a dangerous crossing, failing to give the statutory signals, failing to keep a proper lookout and failing to maintain a warning signal or flagman at the crossing. Appellants interposed a general denial and pleas of sole negligence, recklessness and wilfulness, and contributory negligence, recklessness and wilfulness on the part of respondent's intestate. For convenience the motions in both cases were heard together in the lower Court, with one order being filed applicable to both, and they are likewise consolidated and heard together in this Court.

The affidavits of appellants in support of the motions disclose the following: That the scene of the accident is 114 miles from Camden, the county seat of Kershaw County, and 4 miles from the Georgetown Court House; that appellants have twenty-two material witnesses, of whom twenty live in Georgetwon County, and twelve of these live near the crossing in question; that all of these witnesses are eyewitnesses of the accident, or of events immediately preceding or following it; that the two individual appellants reside in Georgetown County; that at the time of the collision, respondent's intestate was transporting three Negroes, one of whom died as a result of the accident, and the other two live near Georgetown; that a photographic representation of the crossing scene would be inadequate and that it would be highly desirable on the trial for the jury to view the crossing, its approaches and surroundings, which would be impracticable if the cases were tried in Kershaw County; and that for the foregoing reasons, a trial of the two cases in Georgetown County would be much more convenient and less expensive for the witnesses, and that the ends of justice would be thereby promoted.

The only affidavit submitted by respondent is made by one of her attorneys, the material portions of which are substantially as follows: That respondent has five or six material witnesses who live in Kershaw County, one of whom is the Probate Judge, 'one or more' are doctors who will testify as to the condition of decedent's health, and 'two or three' of whom will testify as to his occupation and income; that there are 'two or three' witnesses residing in the City of Columbia who were present at or about the time of the collision; that there is another witness who was present at the time of the collision who is a resident of the State of Alabama; and that it will be unnecessary for the jury to view the scene of the accident, as appellants have adequate photographic evidence of same.

It appears that prior to the hearing of these motions, an action for wrongful death was instituted against the Railway Company in Georgetown County by the administratrix of the estate of Robert Dennison, a Negro passenger in decedent's car who also died as a result of injuries received in the same accident, which action resulted in a verdict for the defendants. At the hearing of these motions the transcript of the testimony in that case was presented to the Court and is before us as a part of the record on this appeal. On the trial of that case at Georgetown, the plaintiff used eight witnesses, all of whom lived in Georgetown County, and the defendants twelve witnesses, ten of whom resided in Georgetown County and the remaining two, who were railroad employees, lived in Savannah, Georgia. It further appears from the record of that case that neither party asked that the jury be permitted to view the scene of the accident.

The legal principles applicable to motions of this character are well established. Under Subdivision 3, Section 426, Code of 1942, the Court may change the place of trial 'when the convenience of witnesses and the ends of justice would be promoted by the change.' To authorize a change of venue on this ground, the burden is upon the moving party to show that both 'the convenience of witnesses' and 'the ends of justice' will be promoted by the change. Both requirements of the statute must be met. Sample v. Bedenbaugh et al., 158 S.C. 496 155 S.E. 828; Dennis v. McKnight et al., 161 S.C. 213, 159 S.E. 557; Landrum et al. v. State Highway Department, 168 S.C. 139, 167 S.E. 164; Patterson v. Charleston & W. C. Railway Co., 190 S.C. 66, 1 S.E.2d 920; Brice v. State Co., 193 S.C. 137, 7 S.E.2d 850. When the moving party makes a prima facie showing of the fulfillment of both requirements, the burden shifts to the contesting party to defeat the showing made of at least one of these requirements. Patterson v. Charleston & W. C. Railway Co., supra; Brice v. State Co., supra. Such a motion is addressed to the sound judicial discretion of the lower Court and its ruling will not be disturbed by this Court except in cases of manifest error. Sample v. Bedenbaugh, supra; Landrum et al. v. State Highway Department, supra; Roof v. Tiller, 195 S.C. 132, 10 S.E.2d 333, 132 A.L.R. 500; Frost v. Protective Life Insurance Co., 199 S.C. 349, 19 S.E.2d 471. But such rulings have...