Moody v. Burns, 16666

• Citation: 72 S.E.2d 189,222 S.C. 258
• Decision Date: 04 September 1952
• Docket Number: No. 16666,16666
• Court: South Carolina Supreme Court
• Parties: MOODY v. BURNS et al.

Page 189

72 S.E.2d 189

222 S.C. 258

MOODY v. BURNS et al.

No. 16666.

Supreme Court of South Carolina.

Sept. 4, 1952.

Perrin, Ward & Perrin, Spartanburg, for appellant.

McEachin, Townsend & Zeigler, Florence, for respondent.

FISHBURNE, Justice.

This is an appeal from the order of the circuit court refusing a motion on the part of the defendant, Arthur Burns, Trading as Arthur Burns Motor Company, appellant here, to change the venue of this action from Dillon County to Spartanburg County. The motion was based on the ground that Burns, being the real defendant in the cause and a resident of Spartanburg County, has the right to have the action tried in the county of which he is a resident; and that the joinder of the defendant, Uler C. Vander Hall, a sham and immaterial defendant, could not defeat that right.

The action was brought by the plaintiff, as administrator of the estate of Garrett Moody, eceased, against Burns, a resident of Spartanburg County, Henry G. Clary, Jr., a resident of Cherokee County, and Vander Hall, a resident of Dillon County, to recover damages in the sum of $100,000.

The appellant, Burns, answered the complaint, subject to his right to be heard on the motion made by him for a change of venue. Vander Hall filed an answer, counterclaim and cross action, in whcih he seeks judgment against the plaintiff, the defendant, Clary, and the appellant, Burns, in the sum of $10,000 for personal injuries alleged to have been received by him in the collision referred to in the complaint. Burns thereupon filed a reply to so much of the counterclaim and cross action as pertained to him. The defendant, Henry G. Clary, Jr., has made no appearance in the case, and is in default.

The motion to change the venue was heard upon the pleadings, together with certain affidavits and documents filed by the appellant and by the plaintiff. Attorneys for the defendant Vander Hall, who has set up a counterclaim and cross action against the appellant, were present at the hearing, but filed no affidavits or other papers for the consideration of the court. The action was brought to recover damages for the wrongful death of plaintiff's intestate, which occurred on or about May 19, 1951, in a collision which involved three automobiles.

According to the evidence adduced at the hearing before the Circuit Judge, the accident which gave rise to this controversy occurred on United States Highway No. 301 at a point approximately two miles East of the city limits of Florence, after midnight,--that is, about one o'clock. The highway at this point is partically straight for a mile or more in each direction.

The defendant Clary, who is alleged to have been the agent and servant of the appellant Burns, at the time of the accident, was operating a Nash automobile on his right hand side of the highway, going toward Florence, at a speed estimated to be seventy miles per hour, when he came up behind the Buick automobile in which plaintiff's intestate was riding as a passenger, also going toward Florence and traveling on its right hand side of the highway, in its proper lane.

The defendant Vander Hall, who, it is alleged, is a sham defendant in this action, in order to retain jurisdiction in Dillon County, was driving a Ford automobile, coming from the opposite direction, on his right hand side of the highway. He was in the act of meeting and passing the approaching Buick automobile in which plaintiff's intestate was riding, when suddenly and without warning, Clary, driving the Nash automobile behind the Buick, struck the Buick with terrific force from the rear, forcing it to its left across the highway immediately in front of the Vander Hall Ford car, and completely blocking that car's passageway. The evidence shows that Vander Hall was driving at about fifty-five miles an hour, and on his own right hand side of the road. He had no time to stop or turn, and the front of his Ford automobile crashed into the right hand side of the Buick on which plaintiff's intestate was riding.

As a result of these collisions, whether caused by one or both, plaintiff's intestate was instantly killed.

At the time of the institution of this action, the defendant Vander Hall, a negro nineteen years of age, was a tenant farmer and owned no property. So far as the record shows, he was not served with notice to apply for the appointment of a guardian ad litem, and no guardian ad litem has been appointed for him.

The record further shows without contradiction, that Clary, the defendant who drove the Nash automobile into the rear of the Buick, which was proceeding at about 35 to 40 miles per hour, had been constantly drinking beer and whiskey from about five o'clock in the afternoon of May 18th until he crashed with terrific speed into the Buick in which plaintiff's intestate was a passenger, about one o'clock on the morning of May 19th.

An effort was made by respondent to show that the lights of the approaching Ford car, driven by Vander Hall, were 'vibrating' and in the affidavit by Clary this alleged vibration was ascribed to speed; but nowhere in the Clary affidavit is any estimate made as to the rate of speed at which the Vander Hall Ford car was traveling. It could well be true, that Clary in his alcoholic condition thought the lights were vibrating. Vander Hall in his affidavit offered by appellant, states that he was traveling at about fifty-five miles per hour; that he saw the Buick automobile approaching, and that there was a car behind it (Clary's Nash). Both of these cars were on their right hand side of the road; he had no advance warning of any collision until the Buick in which plaintiff's intestate was riding, was suddenly and violently thrown across the road into his lane of travel, rendering the accident...