Roof v. Tiller

• Decision Date: 03 April 1940
• Docket Number: 15056.
• Citation: 10 S.E.2d 333,195 S.C. 132
• Parties: ROOF v. TILLER et al. (two cases).
• Court: South Carolina Supreme Court

10 S.E.2d 333

195 S.C. 132

ROOF v. TILLER et al. (two cases).

No. 15056.

Supreme Court of South Carolina

April 3, 1940

Rehearing Denied Aug. 7, 1940.

C T. Graydon, of Columbia, and George D. Levy, of Sumter, for appellants.

John Gregg McMaster, Jr., of Columbia, for respondents.

BONHAM Chief Justice.

The appeals which are combined here grow out of the same state of facts and will be heard together. One conclusion will cover both.

The actions grew out of a collision between automobiles. The one driven by Mrs. Lucinda Sams Roof, and the other driven by Edmund E. Tiller. The collision occurred in Richland County and the actions were brought in the County Court of Richland County. On motion of the defendant, predicated on the allegation that he is a resident of Sumter County, the place of trial was moved to Sumter County. Thereupon, on motions of the plaintiffs, Judge Bellinger, then presiding in the Court of Common Pleas for Sumter County, transferred the cases for trial to the County Court of Richland County. The motion of plaintiffs for the transference to the County Court of Richland County was based on the grounds that the convenience of witnesses and the ends of justice would be better served and promoted by trying these cases in Richland County. In support of the motions the plaintiffs offered the affidavit of the plaintiff, Mrs. Lucinda Sams Roof, that she and her daughter Anne Roof were treated in Providence Hospital by Drs. Durham and Brannon, and were attended by numerous nurses and hospital attendants, who are daily employed in the City of Columbia, and that it would be practically impossible for plaintiffs to obtain the benefit of their testimony if they should have to attend Court at Sumter; that it would be equally inconvenient for the named physicians; that the said physicians, by their affidavits, strongly support these allegations. C. C. Howell, Jr., by his affidavit, states that he is notified by plaintiffs' attorney that he is a material witness for plaintiffs in these actions; that he is a resident of West Columbia and could within a few minutes attend the Court in Columbia and return to his employment at the Columbia Mills, but that it would interfere with his work and greatly inconvenience him if he has to go to Sumter to attend the trial and remain until he is called to testify. He knows other mill employees who are regularly employed in the mill and who will be called to testify for plaintiff, upon whom it will work a hardship if they are compelled to attend Court in Sumter County.

The defendant appeals on two exceptions, which he treats in his brief in the form of two questions:

1. Is the showing here sufficient to transfer the case from Sumter County to Richland County?

2. Has the Court of Common Pleas for Sumter County the power to transfer a case to Richland County to be tried in the Richland County Court?

It does not need the citation of authority to show that the motion to transfer the venue of a case on the grounds that "it will serve the convenience of witnesses and promote the ends of justice" is addressed to the sound discretion of the Judge who hears it, and it is equally well established law that this Court will not reverse the action of the Judge on the ground that he has abused his discretion if there is, in the proof submitted by the movant, competent and relevant evidence to sustain his action.

"It is equally well settled in this state that a motion to change the place of trial upon this statutory ground is addressed to the sound judicial discretion of the circuit judge ***, which will not be disturbed by the court except in cases of manifest error." Sample v. Bedenbaugh et al., 158 S.C. 496, 155 S.E. 828, 830.

"*** This court will not interfere with the discretion exercised by a circuit judge unless it is convinced that the action of the circuit judge was so opposed to a sound discretion as to amount to a deprivation of the legal rights of the complaining party. ***" Griffin v. Owens et al., 171 S.C. 276, 172 S.E. 221, 222.

In that case an automobile collision occurred in Spartanburg County. The defendant resided in Richland County. Action was brought in Spartanburg County; on motion of the defendant, the venue was changed to Richland County. Motion was made by the plaintiff, before Judge Grimball, to transfer the venue back to Spartanburg County on the grounds of the convenience of witnesses and the promotion of the ends of justice; which motion was granted. In this case the Court said what is above quoted and added the following:

"*** We are not convinced to this extent in the present case; in fact, in our opinion, the discretion of the trial judge was, not only judiciously, but was wisely, exercised."

"It has been well settled in this state, as elsewhere, that place of residence is a question of fact and depends upon the intention of the party as evidenced by his acts and declarations (Barfield v. [J. L.] Coker [& Co.], 73 S.C. 181, 53 S.E. 170; Laney v. Gregory, 101 S.C. 144, 86 S.E. 3), and the finding of the circuit judge is conclusive thereon unless there is a total failure of testimony to support it (Barfield v. [J. L.] Coker & Co., supra; LeHardy v. Dibble, 80 S.C. 482, 61 S.E. 950)." Sample v. Bedenbaugh et al., 158 S.C. 496, 155 S.E. 828, 829.

Judge Bellinger, in his Order in this case, said:

"*** It should be stated at the outset that the right to trial in the County where the defendant resides, granted in Section 422, Code 1932, supra, is a substantial right and has been repeatedly held to be such. State v. Columbia Ry. Gas & Electric Co., 129 S.C. 455, 124 S.E. 758, and other cases. However, the Legislature did not intend that such rule was inflexible for it enacted Section 426, supra, which sets out when the place of trial may be changed. When it is affirmatively shown that the convenience of witnesses and the ends of justice would be promoted the Court is fully empowered to transfer the case to another County. Griffin v. Owens, 171 S.C. 276, 172 S.E. 221; Sample v. Bedenbaugh et al., 158 S.C. 496, 155 S.E. 828.

"By affidavits and admissions in argument before me it is shown that all witnesses, except the defendant, reside in Richland County and even the defendant lives in Richland County for nine months of the year as a student at the University; ***. The defendant shows, only, that he is actually a resident of Sumter County, though attending the University; that he is under indictment in Richland County for alleged violation of law, arising out of the collision from which arose these cases, and that such would be prejudicial to his case in Richland County."

Here is the finding by the Circuit Judge that the defendant is a resident of Richland County for nine months of the year, and there is evidence to sustain the finding. It cannot be denied that he was residing in Richland County when the collision occurred and when the actions were brought against him.

We have seen that Section 422 provides that "the action shall be tried in the county in which the defendant resides at the time of the commencement of the action." (Italics added).

Black's Law Dictionary, 3rd Ed., at page 1543, defines residence as follows: "The place where a man makes his home, or where he dwells permanently or for a considerable length of time. *** A distinction is recognized between legal and actual residence. A person may be a legal resident of one place and an actual resident of another." (Italics added).

So the defendant was an actual resident of Richland County at the time of the commencement of these actions.

Appellant asks in his second question: "Has the Court of Common Pleas of Sumter County the power to transfer a case to Richland County to be tried in the Richland County Court?"

Why not? Plaintiffs elected to bring their action in that Court; nothing has been presented by appellant to show that it is not a Court of competent jurisdiction. It is the Court from which the appellant had them removed to Sumter and on the sole ground that the defendant is a resident of Sumter County. We find no merit in the proposition.

We are satisfied that Judge Bellinger soundly and wisely exercised his discretion in the premises.

The exceptions are overruled and the order appealed from is affirmed.

CARTER and FISHBURNE, JJ., and E. H. HENDERSON, A. A. J., concur.

J. HENRY JOHNSON, A. A. J., concurs in result.

J. HENRY JOHNSON, Acting Associate Justice (concurring in result).

I concur in the result; I do not think it is necessary to an affirmance of Judge Bellinger's order that this Court should hold that a college student, temporarily absent from the county of his legal residence only for that portion of each year during which his college is in session, is a "resident" of the county in which he is a student, in the sense in which the word "resident" is used in Section 422, Code of 1932. But for the power of the Court to change the venue in proper cases, it is my opinion that college and university students should be sued in the counties of their legal residence, in the counties where they live with their parents.

On Petition for Rehearing.

PER CURIAM.

The defendant petitions this Court for a rehearing, predicating his petition upon two grounds, viz.:

1. That defendant is not a resident of Richland County but resides in Sumter County. It is sufficient to say that Judge Bellinger, in his order removing the case from Sumter County back to Richland County, based the order principally on the ground that it was for the convenience of witnesses and the promotion of the ends of justice. He did say in his order that "By affidavits and admissions in argument before me, it is shown that all witnesses, except the defendant, reside in Richland County, and...