Harper v. Newark Ins. Co.

• Decision Date: 25 May 1964
• Docket Number: No. 18217,18217
• Citation: 244 S.C. 282,136 S.E.2d 711
• Court: South Carolina Supreme Court
• Parties: Larnah HARPER, Respondent, v. NEWARK INSURANCE COMPANY, Appellant. Larnah HARPER, Respondent, v. BLUE RIDGE INSURANCE COMPANY, Appellant. Larnah HARPER, Respondent, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Appellant.

Page 711

136 S.E.2d 711

244 S.C. 282

Larnah HARPER, Respondent, v. NEWARK INSURANCE COMPANY, Appellant.

Larnah HARPER, Respondent, v. BLUE RIDGE INSURANCE COMPANY, Appellant.

Larnah HARPER, Respondent, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Appellant.

No. 18217.

Supreme Court of South Carolina.

May 25, 1964.

Suggs & McCutcheon, Conway, Paul A. Sansbury, Darlington, for appellants.

James P. Mozingo, III, D. Kenneth Baker, Darlington, for respondent.

MOSS, Justice:

This is an appeal from an order of the Civil and Criminal Court of Darlington County, refusing a motion made by the appellants for a change of venue from Darlington County to Horry County, upon the ground that 'the convenience of witnesses and the ends of justice would be promoted by the change.' Section 10-310(3), 1962 Code of Laws of South Carolina.

Three separate actions were brought by Larnah Harper, the respondent herein, on separate fire insurance policies issued by the three different Insurance Companies, the appellants herein. It appears that each of the appellants issued and delivered to the respondent a policy of insurance, insuring the respondent against loss or damage to a building owned by her on the waterfront at Myrtle Beach, South Carolina, by fire or other catastrophies, including loss or damage resulting from crashing aircraft. The respondent, who is a resident of Horry County, alleges in her complaint that on April 3, 1959, while the aforesaid policies were in full force and effect, an airplane crashed into the building owned by her and as a result thereof the said building was damaged by the crash and a subsequent fire, which said loss and damage were covered by the aforesaid policies.

A motion for a change of venue is addressed to the sound judicial discretion of the Judge who hears it and his decision will not be disturbed by this Court except upon a clear showing of abuse of discretion amounting to manifest error of law. In order to prevail on a motion for a change of venue, the moving party must make a prima facie showing that both the convenience of witnesses and the ends of justice would be promoted by the change; Bryan v. Ross, 236 S.C. 299, 114 S.E.2d 97; and upon such showing having been made, the burden shifts to the party resisting the motion to overcome it as to at least one of these requirements. McKinney v. Noland Co., 227 S.C. 27, 86 S.E.2d 607. This Court has held that the promotion of the ends of justice is served by having a jury of the vicinage pass upon the credibility of witnesses. King v. Moore, 231 S.C. 421, 98 S.E.2d 849.

At issue in these cases is the extent of damage to respondent's property. The appellants, on the motion to change the venue, submitted five affidavits, four of them being from witnesses who examined the property and knew the amount of damage thereto, and who conferred with the respondent thereabout. Two of these witnesses are local building contractors who actually inspected the property immediately after the loss occurred and prepared estimates of the damage and cost of repairs to said property. It is shown by affidavit that all of the witnesses are material and indispensable to the appellants in the trial of these cases. These witnesses are residents and...