Gulledge v. Young

• Decision Date: 23 April 1963
• Docket Number: No. 18058,18058
• Court: South Carolina Supreme Court
• Parties: Jossie Carl GULLEDGE, Respondent, v. Harvey Walter YOUNG and Bowman Transportation, Inc., Appellants.

Page 695

130 S.E.2d 695

242 S.C. 287

Jossie Carl GULLEDGE, Respondent, v. Harvey Walter YOUNG and Bowman Transportation, Inc., Appellants.

No. 18058.

Supreme Court of South Carolina.

April 23, 1963.

Baskin & Cothran, Bishopville, for appellants.

Leppard & Leppard, Chesterfield, James P. Mozingo, III, Darlington, for respondent.

TAYLOR, Chief Justice.

This appeal is from an Order granting plaintiff's motion for a nonsuit without prejudice before trial and presents the question of whether or not the trial Judge thereby abused his discretion.

Action was instituted in the Court of Common Pleas for Darlington County by plaintiff, who seeks damages for injuries allegedly sustained as a result of an automobile-truck collision on July 21, 1960, near Athens, Georgia. The defendant Young, a resident of Anderson County, South Carolina, was the driver of the truck owned by the defendant Bowman Transportation, Inc. (hereinafter referred to as Bowman), a foreign Corporation organized and existing under the laws of the State of Alabama and licensed to do business in the State of South Carolina.

Summons and complaint were served on defendant on December 24, 1960; subsequently motion of defendant Young for change of venue on the grounds of lack of jurisdiction of the person was denied by Order of the Honorable J. Woodrow Lewis, dated March 1, 1961.

On May 17, 1961, defendant Bowman served notice of motion to dismiss the summons and complaint on the grounds of lack of jurisdiction of the subject matter and defendant Young served notice of motion to change the venue to Anderson County in the event defendant Bowman's motion was granted. Defendant Young also served his answer, dated May 17, 1961, to the complaint.

Defendant Bowman's motion was heard by the Honorable James A. Spruill, Jr., on November 17, 1961, at which time various affidavits, certificates and other evidence were presented tending to show that the plaintiff was at the time of the auto-truck collision in July, 1960, and at the time of the commencement of the action in December, 1960, a resident of the State of California. The plaintiff presented various affidavits, certificates and other evidence tending to show that he was a resident of the State of South Carolina at the time of the collision and at the time of the commencement of suit. After hearing, Judge Spruill took the matter under advisement.

On November 18, 1961, plaintiff prepared notice of motion that he would move before Judge Spruill on November 25, 1961, for a voluntary nonsuit without prejudice, which notice was served upon defendant's counsel on November 20, 1961. At the hearing before Judge Spruill on the above motion plaintiff contended that he was entitled to the voluntary nonsuit as a matter of right. Defendants contended that the plaintiff was not so entitled as the granting of such nonsuit would constitute legal prejudice to or the loss of some material legal right to the defendant Bowman. By Order of January 10, 1962, Judge Spruill granted plaintiff's motion for a voluntary nonsuit and defendants appeal followed.

The granting of a voluntary nonsuit without prejudice not only terminates the case as a procedural matter, but leaves the situation as though no suit had ever been brought unless defendant has interposed claim for affirmative relief. Allen v. Atlanta & Charlotte Air Line Ry. Co., 216 S.C. 188, 57 S.E.2d 249, 23 A.L.R.2d 657; Kay v. Meadors, 216 S.C. 483, 58 S.E.2d 893; Allen v. Southern Ry. Co., et al., 218 S.C. 291, 62 S.E.2d 507; Moore v. Southern Coatings & Chemical Co., 221 S.C. 522, 71 S.E.2d 311.

Material or legal prejudice may not be deduced from the fact that the granting of the motion for nonsuit would impose upon the defendant the necessity of defending another suit. State v. Southern Railway Co., 82...