Miller v. Boyle Const Co.

• Decision Date: 10 November 1941
• Docket Number: No. 15325.,15325.
• Citation: 198 S.C. 166,17 S.E.2d 312
• Court: South Carolina Supreme Court
• Parties: MILLER. v. BOYLE CONST CO. (two cases).

198 S.C. 166
17 S.E.2d 312

MILLER.
v.
BOYLE CONST CO. (two cases).

No. 15325.

Supreme Court of South Carolina.

Nov. 10, 1941.

[17 S.E.2d 313]

Appeal from Common Pleas Circuit Court of Lexington County; T. S. Sease, Judge.

Actions by Victor G. Miller, suing as administrator of the estate of Horace R. Miller, deceased, against Boyle Construction Company, a corporation under the laws of South Carolina, to recover for wrongful death and for conscious pain and suffering of decedent. From orders denying defendant's motions for change of venue, defendant appeals.

Orders affirmed.

Herbert & Dial, of Columbia, for appellant.

H. C. Miller, of Anderson, for respondent.

FISHBURNE, Justice.

These two cases, --one for death by wrongful act, and the other under the survival statute, for conscious pain and suffering, --were commenced in the Court of Common Pleas for Lexington County by the service of a summons (without complaint) on the fifth day of September, 1940, on A. D. McCoy, the representative and agent of the defendant, Boyle Construction Company, at its offices in Batesburg, in said county. Mr. McCoy was the office manager of the defendant.

Before answering, the appellant served notice of a motion to change the place of trial from Lexington County to Sumter County, basing such motion upon the ground that it is a South Carolina Corporation with its principal place of business in the City of Sumter, and that it makes no contracts and carries on no business in the County of Lexington other than an occasional contract to do road or bridge work. The appellant admits that it engaged in the performance of certain work in connection with the construction of a highway in the County of Lexington between the 29th day of February, 1940, and the fifth day of September, 1940, but since said latter date has had no agent and has done no work in said county.

The Circuit Court refused the motion to change the venue, and the appeal comes here from that order. The identical question is involved in both cases, and this opinion will be decisive as to each. The complaint alleged, among other things, that the defendant is engaged in the business of general contractors, constructing highways, roads, and bridges throughout this State under contract with the State Highway Department, owning and operating for such purposes valuable and extensive property, road machinery, motor trucks, and other facilities in the counties of Sumter and Lexington, South Carolina, and having and maintaining offices and agents in the town of Batesburg, in Lexington County.

The Circuit Court, Judge Sease presiding, held: "The evidence adduced before me at the hearing clearly shows that the defendant, Boyle Construction Company, at the time of service of process upon it, and for many months prior thereto, had rented and maintained an office and an agent in the Town of Batesburg, in Lexington County, South Carolina, for the transaction of its corporate business. That the summons in each of these cases was duly served by the sheriff of Lexington County on the defendant's said agent, namely, one A. D. McCoy, who, as the evidence shows, was the manager of the said Batesburg office, and through whom and by whom the defendant transacted considerable of its corporate business from time to time, e. g., with the Standard Oil Company, the Town of Batesburg, the State Highway Department, and possibly others."

And the Circuit Court found as a fact that the defendant at the commencement of the two actions in tort, and for sometime prior thereto, had and maintained a place of business in the County of Lexington as well as an agent therein, engaged in conducting and...