Hancock v. Southern Cotton Oil Co

• Decision Date: 15 December 1947
• Docket Number: No. .6023.,.6023.
• Citation: 45 S.E.2d 850
• Parties: HANCOCK. v. SOUTHERN COTTON OIL CO. ALLEN. v. SAME.
• Court: South Carolina Supreme Court

45 S.E.2d 850

HANCOCK.

v.SOUTHERN COTTON OIL CO.

ALLEN.

v.SAME.

No. .6023.

Supreme Court of South Carolina.

Dec. 15, 1947.

Appeal from Common Pleas Court of Chesterfield County; J. Woodrow Lewis, Judge.

Actions by J. B. Hancock against the Southern Cotton Oil Company, a foreign corporation, and by Carl Allen against the same defendant for damages arising out of an automobile accident. From order denying motion for change of venue, defendant appeals.

Order reversed and cases remanded.

Thomas, Cain & Black, of Columbia, for appellant.

James E. Leppard and William P. Gull-edge, both of Chesterfield, for respondents.

BAKER, Chief Justice.

This appeal involves two cases in which the issue for determination is identical and it is agreed by counsel that the decision in the Hancock case shall control the Allen case, and, hence, reference hereafter is to the Hancock case alone.

On September 21, 1946, an action was brought against the appellant, in Chesterfield County, with the service of a summons (complaint not served) on J. Calvin Rivers of Chesterfield, later determined by the lower Court not to be an agent of appellant. Before service and filing of the complaint the appellant served notice upon the respondent that it would apply to the lower Court for an order quashing service of the summons "on the ground that the person upon whom service was effected is not an agent of the defendant, nor a person upon whom service could be made." Notice was further given that if such motion be denied the defendant would move for a change of venue from Chesterfield Countyto Richland County, or, in the alternative, to Kershaw County, for the reason that appellant is a foreign corporation, without agents or places of business within the County of Chesterfield. Before the motions were heard the respondent instituted a new action by service of a summons and complaint upon the local manager of appellant at Camden, S. C, Kershaw County, but bringing the action in the Court of Common Pleas for Chesterfield County, the same County in which the first action was brought.

The respondent's cause of action is in tort for personal injury and property damage occasioned by the alleged negligent and reckless operation of a motor vehicle, owned by and in the service of the apel-lant, in the County of Chesterfield. Appellant's answer admits the collision, and that respondent sustained some injury and damage, but denies any allegations of negligence and recklessness, and further declares that appellant has no offices, places of business, or resident agents in the County of Chesterfield, and that Richland County or Kershaw County is the proper place of trial. This answer was filed subject to appellant's right to a change of venue.

The motion for a change of venue was heard before Honorable J. Woodrow Lewis, Resident Judge of the Fourth Judicial Circuit, at Chambers in Darlington, S. C, who, after hearing counsel and considering the affidavits filed in support of and in opposition to the motion, issued an order denying the motion and holding that the action was properly triable in Chesterfield County. In this order Judge Lewis finds "that the defendant has no resident agents in the County of Chesterfield, nor offices therein for the transaction of its corporate business, " but that "This finding, however, is not conclusive of the matter, for it appears that the defendant owns property and transacts business in the County of Chesterfield and for these reasons is subject to suit in said county." The ownership by appellant of property in Chesterfield County is admitted; and it is also admitted that it purchases cotton seed in said County, and sells fertilizer therein.

The basis for the conclusion by the lower Court is to be found in the following quoted portion of the Order, to wit:

"A foreign corporation domesticating under the laws of this State is 'subject to the laws of the same in like manner as corporations chartered under the laws of this State, * * *' Section 7776 of the 1942 Code.

"I have found no decision of this State so holding, and there appears no sound reason to hold, that a foreign corporation domesticated under the laws of this State should be preferred or treated differently than domestic corporations in matters affecting venue for trial of cases against them. In fact, in the case of Tucker v. Ingram, 187 S.C. 525, 198 S.E. 25, [28] attention is called by our Supreme Court that 'the United States Supreme Court * * * held that the foreign corporations mentioned should be on a parity with domestic corporations in the matter of the place of trial.'

"It was admitted in the argument before me that the summons was served on an agent of the defendant corporation in Kershaw County. Section 434 of the 1942 Code of Laws is in part as follows: 'provided, further, that, in the case of domestic corporations, service as affected under the terms of this section shall be effective and confer jurisdiction over any domestic corporation in any county where such domestic corporation shall own property and transact business, regardless of whether or not such domestic corporation maintains an office or has agents in that county.'

"The defendant corporation having domesticated under the laws of this State is governed by the place of trial set in the above Section of the Code the same as domestic corporations of this State.

"It will be seen that the above Section confers jurisdiction in any County where such domestic corporation (1) shall own property and (2) transact business.

"It is admitted that the defendant owns property in Chesterfield County."

To this ruling that a foreign corporation, domesticated under the laws of this State, may be sued in any county where it ownsproperty and transacts business, regardless of whether or not such corporation maintains an office and has an agent in such county, comes the exception before this Court.

The lower Court in its order, and respondent's brief, emphasizes the fact that the appellant is a domesticated foreign corporation but this point is not a deciding factor in the case and has been held to be irrelevant in the cases of Tucker v. Ingram et al, 187 S.C. 525, 198 S.E. 25; Warren v. Smith et al, 190 S.C. 8, 1 S.E.2d 900, both of which reaffirm the principle as declared in Campbell v. Mutual Benefit Health & Accident Association, 161 S.C. 49, 159 S.E. 490.

The three cases cited in the foregoing paragraph definitely show that a foreign corporation, whether or not domesticated, establishes a residence for venue purposes by having an office and agent in a county or counties for the transaction of business. These three cases are followed by the case of Shelton v. Southern Kraft Corporation, 195 S.C. 81, 10 S.E.2d 341, 342, 129 A.L.R. 1280, cited in the order of the lower Court, from which opinion we quote:

"What is necessary to show that a foreign corporation has established a residence for venue purposes in a county other than that in which its legal residence is admitted to be? It cannot be, and is not denied that defendant is a foreign corporation engaged in the manufacture of paper from pine pulp, with its factories, its corporate buildings, offices and business in Georgetown County. To maintain the contention that it has a residence for venue purposes, it must be shown more than that it has an agent in that County; it must have offices for the transaction of its corporate business. The trial Judge recognizes this principle of law. He says in his order of July 31, 1939, which is affirmed by his order of October 10, 1939:

" 'A foreign corporation whether or not...