Patterson v. Charleston & W. C. Ry. Co.

• Decision Date: 27 March 1939
• Docket Number: 14849.
• Parties: PATTERSON v. CHARLESTON & W. C. RY. CO. (two cases).
• Court: South Carolina Supreme Court

1 S.E.2d 920

190 S.C. 66

PATTERSON v. CHARLESTON & W. C. RY. CO. (two cases).

No. 14849.

Supreme Court of South Carolina

March 27, 1939

M.G McDonald, of Greenwood, and J. W. Manuel, of Hampton, for appellant.

George Warren, of Hampton, for respondent.

FISHBURNE Justice.

This appeal is from an order refusing a motion made by the appellant for a change of venue in two cases, from Hampton County to Laurens County. The motion in each case was made upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change, and was based upon the provisions of section 426 of the Code of 1932.

For convenience the two motions were heard together by his Honor Judge Johnson, and but one order was filed by him, applying to both. For the same reason the two appeals were consolidated and heard together in this Court.

Both suits arose from the same crossing collision between an automobile and a freight train, which it is alleged occurred within the corporate limits of the city of Laurens on February 13, 1937. The automobile was the property off Mrs. J. R. Patterson, the plaintiff in one case, and at the time of the accident it was driven by J. R. Patterson Jr., the plaintiff in the other case. The action of Mrs Patterson was brought to recover damages alleged to have been done to the automobile. J. R. Patterson, Jr., in his action seeks to recover damages for alleged personal injuries sustained by him by reason of the collision. The complaints are not incorporated in the record, but the allegations of negligence are said to be identical. The relevant facts upon which the actions are based are shown by the affidavits of the appellant.

From these affidavits it appears that both respondents are residents of Laurens County, although J. R. Patterson, Jr., is temporarily absent; that with the exception of J. P. Patterson, Jr., no witness lives in or near Hampton County; that appellant has at least sixteen material witnesses, twelve of whom reside in Laurens County, and four (employees of the appellant) in Augusta, Georgia; that it is highly desirable for the jury to view the crossing where the, accident occurred, in order to get a clear and correct conception of its nature and surroundings, and that a photographic representation of the crossing scene would be inadequate; that the distance from Laurens to Hampton by rail is 163 miles, and by highway 145 miles. The facts and circumstances which the appellant expects to prove by these witnesses are stated in the affidavits. It is alleged that for these reasons it would be much more convenient and less expensive for the witnesses that the two cases be tried in Laurens County, and that the ends of justice would be thereby promoted, in that the plaintiffs and the witnesses are likely to be known by a Laurens County jury, and such a jury would have a better opportunity to judge of their credibility.

From the counter affidavits submitted by the respondents at the hearing of the motion, it appears that J. R. Patterson, Jr., has been involved in serious trouble of a personal nature, in Laurens County, the details of which are not set out,--of such grave character that his life would be endangered if he returned to Laurens County; that upon the advice of several friends, one of whom was a county officer of Laurens County, he has agreed to leave the County of Laurens, move his residence elsewhere, and not go back to that county; that a very strong sentiment has been worked up against him in Laurens County, notwithstanding the fact that he is innocent of the charge made against him; but on account of the inflammable character of the charge and the fact that his main explanation of it would involve the good name and reputation of a woman of large family connections in that county, he did not make full and complete explanation of the charge, and consequently the vast majority of the people of Laurens County have become inflamed against him, so much so that it would be highly prejudicial to the rights of both J. R. Patterson, Jr., and his mother, Mrs. J. R. Patterson, to transfer the cases to Laurens County; that instead of being in furtherance of justice, such a transfer would be to the contrary; that by reason of these facts, neither he nor his mother could get a fair and impartial trial in Laurens County.

In a short order, which we set out below, the Circuit Judge overruled the defendant's motion for a change of venue:

"These cases arose from alleged injuries at a crossing in the City of Laurens, Laurens County, between an automobile and part of a train. The motion is based upon the grounds of convenience of witnesses and in the furtherance of justice. The strongest showing ever made before me on a motion of this kind has been made. It appears that the convenience of witnesses would best be subserved by a change of venue; and the motion for change would be granted but for the affirmative showing by plaintiffs to the effect that it would not be in the furtherance of justice to make the change. This showing is not traversed. Plaintiffs' showing is to the effect that a fair and impartial trial could not be had in Laurens County. One of the duties of the Court is to see that the parties receive a fair and impartial trial. Being of the opinion that a fair and impartial trial can be had in Hampton County where the action is brought, and that it would not be in the furtherance of justice to change the venue, it is ordered, that the motion be, and same is hereby refused."

Section 426, Code of 1932, gives the Court power to change the place of trial: (1) When the county designated for the purpose of trial, in the complaint, is not the proper county; (2) When there is reason to believe that impartial trial cannot be had in the designated county; and (3) When the convenience of witnesses and the ends of justice will be promoted by the change.

The motion in this case was made under the third subdivision.

In the case of Castles v. Lancaster County, 74 S.C. 512, 55 S.E. 115, 117, it was held that the meaning of the statute in coupling, "the convenience of witnesses," and "the ends of justice," as a single ground for change of venue, was to authorize a change on this ground only when both "the convenience of witnesses" and "the ends of justice" would be promoted.

The circuit order held that the convenience of witnesses would best be subserved by a change of venue, and that the motion would have been granted "but for the affirmative showing by plaintiffs to the effect that it would not be in the...