Perdue v. Southern Ry. Co.

• Decision Date: 02 December 1957
• Docket Number: No. 17357,17357
• Citation: 101 S.E.2d 47,232 S.C. 78
• Parties: Jackie PERDUE, Administratrix of the Estate of D. H. Perdue, Deceased, Respondent, v. SOUTHERN RAILWAY COMPANY and Robert C. Galloway, of whom the former is Appellant.
• Court: South Carolina Supreme Court

Page 47

101 S.E.2d 47

232 S.C. 78

Jackie PERDUE, Administratrix of the Estate of D. H. Perdue Deceased, Respondent, v. SOUTHERN RAILWAY COMPANY and Robert C. Galloway, of whom the former is Appellant.

No. 17357.

Supreme Court of South Carolina.

Dec. 2, 1957.

Paulling & James, Darlington, Frank G. Tompkins, Jr., Columbia, for appellant.

James P. Mozingo, III, Benny R. Greer, Archie L. Chandler, Darlington, Edward E. Saleeby, D. Carl Cook, Hartsville, for respondent.

TAYLOR, Justice.

This appeal is from an order of the Honorable J. Woodrow Lewis, Resident Judge of the Fourth Judicial Circuit, refusing the motion of appellant, Southern Railway Company to change the venue of the abovenamed action from Darlington County, South Carolina, to York County, South Carolina, upon the grounds that the convenience of witnesses and the ends of justice would be promoted thereby and that the defendant-respondent, Robert C. Galloway, is not a bona fide party but was joined as defendant for the purpose of laying venue in Darlington County, said motion being made under the provisions of Section 10-310(3) of the Code of Laws of South Carolina 1952.

The defendant, Southern Railway Company, is not a resident of Darlington County and standing alone would not be subject to suit therein; but the defendant, Robert C. Galloway, who is joined as party defendant, is a resident of such county, Section 10-303, Code of Laws of South Carolina 1952.

In order to prevail, the movant must show that both the convenience of witnesses and the ends of justice will be promoted by the change. Utsey v. Charleston, S. & N. R. Co., 38 S.C. 399, 17 S.E. 141; McCarty v. Bolick, 216 S.C. 396, 58 S.E.2d 338; Simmons v. Cohen, 227 S.C. 606, 88 S.E.2d 679; Holden v. Beach, 228 S.C. 234, 89 S.E.2d 433; McCauley v. McLeod, 230 S.C. 380, 95 S.E.2d 611. Motions of this character are addressed to the discretion of the lower Court, and its ruling on such matters will not be disturbed unless it appears from the facts presented that the Court committed a manifest abuse of a sound judicial discretion. Patterson v. Charleston & W. C. R. Co., 190 S.C. 66, 1 S.E.2d 920; Wilson v. Southern Furniture Co., 224 S.C. 281, 78 S.E.2d 890; Griffin v. Owens, 171 S.C. 276, 172 S.E. 221; Wade v. Southern R. Co., 186 S.C. 265, 195 S.E. 560; Sample v. Bedenbaugh, 158 S.C. 496, 155 S.E. 828; Simmons v. Cohen, supra; Holden v. Beach, supra; and McCauley v. McLeod, supra.

The right of the defendant in a civil action to trial in the county of his residence, Section 10-303, Code of Laws of South Carolina 1952, is a substantial right, Wood v. Lea, 219 S.C. 409, 65 S.E.2d 669; Dison v. Wimbly, 230 S.C. 187, 94 S.E.2d 877; and this Court has repeatedly held that a jury of the vicinage passing upon the credibility of witnesses is in itself a promotion of justice. Utsey v. Charleston, S. & N. R. Co., supra; Simmons v. Cohen, supra; Holden v. Beach, supra; McCauley v. McLeod, supra.

This action was commenced in the Court of Common Pleas for Darlington County, South Carolina, to recover damages for the death of one D. H. Perdue, which is alleged to have resulted from injuries sustained when the automobile in which he was riding collided with a box car of appellant, Southern Railway Company, within the City of Charlotte, North Carolina. The complaint alleges that the death of the said Perdue was brought about by certain negligent, willful, and wanton acts of Robert C. Galloway, driver of said automobile, and of the defendant, Southern Railway Company.

The answer of the defendant, Galloway, admits that he was driving the car at the time of the collision which resulted in the injury and death of Perdue but alleges that the collision was caused by the negligent, careless, reckless, willful, and wanton acts and omissions of the appellant Railway Company and seeks in a cross action to recover against the said appellant Railway Company for personal injuries alleged to have been caused by such acts.

The answer of the appellant Railway Company after admitting formal parts of the complaint sets forth that the death of one Perdue was caused by the sole negligence, willfulness, and wantonness of the defendant, Robert C. Galloway, with whom he was riding and who had charge of his person at the time.

By way of reply to the cross action of defendant, Galloway, the appellant, Southern Railway Company, admits that at the time and place in question the said Galloway drove the car into the side of a freight car of defendant company and pleads the sole negligence and contributory negligence of the defendant Galloway as the proximate cause of his injuries; further, the appellant Company pleads the statutory and common law of North Carolina with reference to crossing collisions.

An examination of the...