Rogers v. Montgomery

• Decision Date: 05 August 1938
• Docket Number: 14737.
• Parties: ROGERS v. MONTGOMERY.
• Court: South Carolina Supreme Court

198 S.E. 380

188 S.C. 244

ROGERS v. MONTGOMERY.

No. 14737.

Supreme Court of South Carolina

August 5, 1938

Appeal from Common Pleas Circuit Court of Anderson County; G. B Greene, Judge.

Action by Wilma Rogers against W. S. Montgomery and another for injuries sustained when the named defendant allegedly operated boat so negligently as to cause boat in which plaintiff was riding to capsize. From an order refusing the named defendant's motion for change of venue, the named defendant appeals.

Order reversed and case remanded, with instructions to change the venue.

Donald Russell, of Spartanburg, for appellant.

Leon W Harris, Rufus M. Newton, and A. H. Dagnall, all of Anderson for respondent.

PER CURIAM.

This appeal is from an order of his honor, Judge Greene, refusing a motion of the defendant Montgomery for a change of venue. The plaintiff, a resident of Anderson County, brought her action in that county to recover damages, both actual and punitive, against Montgomery, a resident and citizen of Spartanburg County, and Duke Power Company, a foreign corporation, with offices and agents in Anderson County. At the time the action was instituted, five companion suits were entered against the same defendants in the same county; but as the questions involved are identical, it is agreed between counsel that the decision in this case will control in all of these suits.

The plaintiff alleged, among other things, that the Duke Power Company "owns, operates, and maintains a hydro-electric generating plant for the purpose of manufacturing electricity near Tuxedo, in the State of North Carolina, the same being on waters of Green River. That for the purpose of operating and maintaining said electrical manufacturing plant there was built and constructed a large dam across Green River, which said dam is now owned and maintained by Duke Power Company and the back waters impounded by said dam caused to be formed a long, deep, narrow lake of water, called Lake Summit;" and that this lake was and is used, with the knowledge, permission and invitation of the defendant, Duke Power Company, "as a resort for the pleasure of those who wish to go thereon for the purpose of swimming, fishing, boating, and other recreational purposes." It was further alleged: "That on or about the 6th day of September, 1936, plaintiff, with some friends, was riding in a small boat on said Lake Summit, and while so riding in said small boat the defendant Walter S. Montgomery was driving and operating said large speedy cabin boat within a few feet of the small boat in which plaintiff was riding, and the said Walter S. Montgomery was driving his large cabin boat at a high and reckless rate of speed and without warning and without a lookout and without due regard for the safety of plaintiff, and the said Walter S. Montgomery drove said large cabin boat so close to the small boat in which plaintiff was riding that the huge waves created by said large boat caused water to pour into the small boat, capsizing and overturning same and throwing plaintiff and all other passengers of the said small boat into the waters of the deep lake, thereby causing serious injuries to the plaintiff, and plaintiff was badly frightened and almost drowned, stunned and dazed for a time, and that she suffered a profound nervous shock and intense physical and mental pain, and that she was ill for a long time, and is still a nervous wreck from said injuries."

One of the delicts with which the Duke Power Company was charged is as follows: "In allowing the large boat of Walter S. Montgomery to be operated on Lake Summit at a high and reckless rate of speed without warning plaintiff of the danger from the large waves created by and caused by the operation of said large boat, which danger was well known to the Duke Power Company and unknown to the plaintiff."

The motion of Montgomery for a change of venue from Anderson County to Spartanburg County was made upon the ground that he is a resident of the last named county and is the only real defendant in the cause; that, therefore, he is entitled to have the action tried in the county of his residence, and that the joinder of the defendant, Duke Power Company, cannot defeat that right. The matter was heard by Judge Greene upon the verified pleadings, together with certain affidavits filed on behalf of the defendant Montgomery. The plaintiff submitted no affidavits or other testimony, but relied solely upon the allegations of her verified complaint.

The Circuit Judge, in refusing the motion, said: "Plaintiff alleges in her complaint that at the time she was injured the lake was used with the knowledge, permission and invitation of Duke Power Company by those who wished to go thereon for boating or other recreational purposes. If that be true, then I think Duke Power Company owed plaintiff the duty of exercising ordinary care to protect...