McMillan v. B. L. Montague Co., No. 17804

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: TAYLOR; OXNER, LEGGE and MOSS, JJ., and J. B. BRAILSFORD, Jr.
• Citation: 238 S.C. 512,121 S.E.2d 13
• Parties: Mrs. Grace Sease McMILLAN, Appellant, v. B. L. MONTAGUE COMPANY and J. A. Monts, of whom B. L. Montague Company is, Respondent.
• Docket Number: No. 17804
• Decision Date: 17 July 1961

Page 13

121 S.E.2d 13 238 S.C. 512 Mrs. Grace Sease McMILLAN, Appellant,
v.
B. L. MONTAGUE COMPANY and J. A. Monts, of whom B. L.
Montague Company is, Respondent. No. 17804. Supreme Court of South Carolina. July 17, 1961.

Page 14

[238 S.C. 513] Jeff D. Griffith, Saluda, R. Milo Smith, T. H. Rawl, Jr., A. Frank Lever, Jr., Lexington, for appellant.

[238 S.C. 514] Whaley & McCutchen, Hoover C. Blanton, Columbia, Francis C. Jones, Lexington, for respondent.

[238 S.C. 516] TAYLOR, Chief Justice.

This appeal is from an action brought in the Court of Common Pleas for Lexington County to recover damages for personal injuries arising out of an automobile collision.

The defendant, B. L. Montague Company, is a South Carolina corporation with its principal place of business in Sumter, South Carolina; and the defendant, J. A. Monts, is a resident of Lexington County. The defendant Company, at the time of filing answer and interposing counterclaim, also filed notice of motion for an Order changing the place of trial from Lexington County to Sumter County. Upon the opening day of the November, 1958, Term of Court, the motion for change of venue was heard and denied by the presiding Judge. The case having previously been advanced to the head of the trial roster, trial was commenced shortly thereafter. At the close of plaintiff's testimony, motion for nonsuit was made and granted on behalf of the defendant, J. A. Monts. The defendant Company then renewed its motion for a change of venue. Such motion was again denied. The trial proceeded with the defendant Company withdrawing its counterclaim. Upon conclusion of all testimony, counsel for defendant Company moved for a directed verdict as to punitive damages and renewed its previous motions for a change of venue. The motions were refused, and the case submitted to the jury who found for plaintiff. [238 S.C. 517] Thereafter, motion was made for Judgment non obstante veredicto or, in the alternative, for a new trial. After hearing arguments, the presiding Judge issued his Order in which he set aside the verdict of the jury and changed the place of trial from Lexington County to Sumter County. In doing so, he stated that at the time the motion for change of venue was first presented, he was of opinion that the complaint stated a cause of action against defendant, Monts, and that such was sufficient for trial purposes in the County in which the action was brought; that upon trial, however, plaintiff had failed absolutely to produce any evidence to establish any cause of action against the defendant, Monts, and that defendant, Montague, was the only bona fide defendant in the action and defendant, Monts, was a mala fide defendant joined for the purpose of laying venue in Lexington County. He further stated 'there is every earmark of a fraudulent joinder of the defendant, J. A. Monts, in order for plaintiff to maintain her action in Lexington County,' and cited Rosamond v. Lucas-Kidd Motor Co. et al., 183 S.C. 544, 191 S.E. 516; Tate & Thompson v. Blakely, 3 Hill Law 297, 21 S.C.Law 297; City of Sumter v. United States Fidelity & Guaranty Co. et al., 116 S.C. 29, 106 S.E. 778;...