Oswald v. Southern Farm Bureau Cas. Ins. Co.

• Decision Date: 14 October 1966
• Docket Number: No. 18565,18565
• Parties: Mozelle C. OSWALD, Respondent, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Pinkerton National DetectiveAgency, Inc., and Richard K. Atkinson, Appellants.
• Court: South Carolina Supreme Court

Page 612

150 S.E.2d 612

248 S.C. 433

Mozelle C. OSWALD, Respondent, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Pinkerton National DetectiveAgency, Inc., and Richard K Atkinson, Appellants.

No. 18565.

Supreme Court of South Carolina.

Oct. 14, 1966.

Henderson, Salley, Cushman & Summerall, Aiken, Turner, Padget, Graham & Laney, Columbia, for appellants.

Lawton & Myrick, Allendale, Murdaugh, Eltzroth & Peters, Hampton, for respondent.

MOSS, Chief Justice.

This is an appeal from an order of the Richland County Court of Common Pleas granting a motion for a change of venue from Richland County to Allendale County, upon the grounds that 'the convenience of witnesses and the ends of justice would be promoted by the change.' Section 10--310(3), 1962 Code of Laws. The present action is a sequel to Oswald v. Oswald et al., 245 S.C. 44, 138 S.E.2d 639, which was an action for personal injuries sustained by the plaintiff therein as a result of an automobile collision occurring in the City of Greenville on October 28, 1962, between an automobile owned and operated by John S. Oswald and occupied by the plaintiff as a passenger, and an automobile owned and operated by Charlie Patterson. That case also came before this Court on an appeal from an order disposing of a motion for a change of venue. It appears from the record in this case that the personal injury case was compromised.

The plaintiff in the present case is the same as the plaintiff in the first action. By her complaint she alleges that the defendant Southern Farm Bureau Casualty Insurance Company, the insurance carrier in the earlier action which finally negotiated the settlement, employed in May 1964, the defendant Pinkerton National Detective Agency, Inc., to keep her under surveillance and observation. It is further alleged that such surveillance and observation were made by the defendant Atkinson, an employee of the defendant Pinkerton. It is further alleged that the defendant Atkinson carried out his surveillance and observation of the plaintiff in such a manner as to invade her privacy and on one occasion hid himself in an unoccupied dwelling house adjoining the home of the plaintiff, without the consent or permission of the owner, and there secretly 'spied upon and peeped' at the plaintiff in the privacy of her home and took photographs of her, likewise invading the sanctity and privacy of her home.

This action was originally brought in Allendale County. The defendants moved to have the venue changed from Allendale County to Richland County on the ground that no defendant other than Southern Farm Bureau Casualty Insurance Company is a resident of Allendale County or subject to the jurisdiction of that County for venue purposes, and that the defendants Pinkerton and Atkinson were residents of Richland County. By order, dated August 21, 1965, The Honorable W. L. Rhodes, Jr., Resident Judge of the Fourteenth Judicial Circuit, held that the relation between Pinkerton and the insurance company was not one of agency but that Pinkerton was an independent contractor. He also held that the insurance company was an immaterial party and granted the defendants' motion for a change of venue to Richland County. Thereafter, the plaintiff made a motion to have the venue changed from Richland County to Allendale County upon the grounds that the convenience of witnesses and the ends of justice would be promoted by such change. By order, dated April 5, 1966, the Honorable James Hugh McFaddin, Presiding Judge of the Fifth Judicial Circuit, granted the motion. The defendants have appealed from his order.

This Court has repeatedly held that 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. Skinner v. Santoro et al., 245 S.C. 35, 138 S.E.2d 645; Oswald v. Oswald et al., 245 S.C. 44, 138 S.E.2d 639; Gulledge v. Young et al., 245 S.C. 88, 138 S.E.2d 833.

We have also held that the right of a defendant in a civil action to a trial of a defendant in a civil action to a trial in the county of his residence, pursuant to Section 10--303 of the Code, is a substantial one and such right is sometimes described as a valuable right not to be...