Gregory v. Powell, 15728.
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | OXNER, Justice |
| Citation | 33 S.E.2d. 629 |
| Parties | GREGORY. v. POWELL et al. |
| Docket Number | No. 15728.,15728. |
| Decision Date | 02 April 1945 |
33 S.E.2d. 629
GREGORY.
v.
POWELL et al.
No. 15728.
Supreme Court of South Carolina.
April 2, 1945.
Appeal from Common Pleas Circuit Court of Kershaw County; C. C. Feather-stone, Judge.
Separate actions by Lorene Bryce Gregory, administratrix of the estate of Claude Albert Gregory, deceased, against L. R. Powell, Jr., and Henry W. Anderson, as
[33 S.E.2d. 630]receivers of the Seaboard Air Line Railway Company, and others to recover under Lord Campbell's Act and under the Survival Act for decedent's death. From an order applicable to both actions denying defendants' motions for change of venue, defendants appeal.
Reversed and remanded.
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 resposdent'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 scat of Kershaw County, and 4 miles from the Georgetown Court House; that appellants have twenty-two material witnesses, of whom twenty live in Georgetown 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...
To continue reading
Request your trial
-
Wilson v. Southern Furniture Co., 16796
...requirement of the promotion of the ends of justice, which we have found it unnecessary to pass upon. Gregory v. Powell, 206 S.C. 261, 33 S.E.2d 629. However, it may be said that the record indicates that it is a straight highway, without unusual features, Wingard v. Sims, 222 S.C. 396, 73 ......
-
Fouche v. Royal Indem. Co. Of N.Y., 16062.
...trial. Code of 1942, Sec. 426(3). Patterson v. Charleston & W. C. Ry. Co, 190 S.C. 66, 1 S.E. 2d 920. Gregory v. Powell, 206 S.C. 261, 33 S.E.2d 629. Reversal for order changing the place of trial necessarily carries with it reversal of the order of reference to the Master of Spartanburg Co......
-
Brown v. Brown, 18148
...v. Boozer, 242 S.C. 292, 130 S.E.2d 903. See also, Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225; Machado v. Machado, 220 S.C. 90, 33 S.E.2d 629. The husband here not only failed to prove the existence of the third above enumerated essential element of desertion, 'the absence of the oppos......
-
Leppard v. Jordan's Truck Line, 3362.
...conditions almost identical with the Federal Code. The Supreme Court of South Carolina, in the case of Gregory v. Powell, 206 S.C. 261, 33 S.E. 2d 629, 632, is highly appropriate 110 F. Supp. 819 "* * * It has been held that the ends of justice are promoted by having a jury from the vicinag......
-
Wilson v. Southern Furniture Co., 16796
...requirement of the promotion of the ends of justice, which we have found it unnecessary to pass upon. Gregory v. Powell, 206 S.C. 261, 33 S.E.2d 629. However, it may be said that the record indicates that it is a straight highway, without unusual features, Wingard v. Sims, 222 S.C. 396, 73 ......
-
Fouche v. Royal Indem. Co. Of N.Y., 16062.
...trial. Code of 1942, Sec. 426(3). Patterson v. Charleston & W. C. Ry. Co, 190 S.C. 66, 1 S.E. 2d 920. Gregory v. Powell, 206 S.C. 261, 33 S.E.2d 629. Reversal for order changing the place of trial necessarily carries with it reversal of the order of reference to the Master of Spartanburg Co......
-
Brown v. Brown, 18148
...v. Boozer, 242 S.C. 292, 130 S.E.2d 903. See also, Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225; Machado v. Machado, 220 S.C. 90, 33 S.E.2d 629. The husband here not only failed to prove the existence of the third above enumerated essential element of desertion, 'the absence of the oppos......
-
Leppard v. Jordan's Truck Line, 3362.
...conditions almost identical with the Federal Code. The Supreme Court of South Carolina, in the case of Gregory v. Powell, 206 S.C. 261, 33 S.E. 2d 629, 632, is highly appropriate 110 F. Supp. 819 "* * * It has been held that the ends of justice are promoted by having a jury from the vicinag......