Rosamond v. Lucas-Kidd Motor Co., Inc.

• Decision Date: 01 June 1937
• Docket Number: 14490.
• Parties: ROSAMOND v. LUCAS-KIDD MOTOR CO., Inc., et al.
• Court: South Carolina Supreme Court

191 S.E. 516

183 S.C. 544

ROSAMOND v. LUCAS-KIDD MOTOR CO., Inc., et al.

No. 14490.

Supreme Court of South Carolina

June 1, 1937

Appeal from Common Pleas Circuit Court of Greenville County; G Duncan Bellinger, Judge.

Action by Mrs. Edith Southern Rosamond against the Lucas-Kidd Motor Company, Inc., Dorothy Farrow, H. L. Rosamond, and others. From an order denying the motion of defendants motor company and another for a change of venue, movants appeal.

Reversed and transfer of case to another county for trial ordered.

Watkins & Prince, of Anderson, and Price & Poag, of Greenville, for appellants.

Hicks & Johnston, of Greenville, for respondent Edith Southern Rosamond.

J Robert Martin, of Greenville, for respondent Dorothy Farrow.

Haynsworth & Haynsworth, of Greenville, for respondent H. L. Rosamond.

BAKER Justice.

This action was begun in the court of common pleas for Greenville county on October 13, 1936, and was brought for recovery of damages for alleged personal injuries to the plaintiff-respondent, Edith Southern Rosamond. In addition to appellants, she joined as defendants Dorothy Farrow, a resident of Greenville county, and her husband, H. L Rosamond, also a resident of Greenville county. The appellant Lucas-Kidd Motor Company, Inc., is a South Carolina corporation with its principal place of business at Anderson, and the appellant Ralph Hayes is a resident of Anderson county. Before answering, the defendants-appellants, Lucas-Kidd Motor Company, Inc., and Ralph Hayes, served notice of a motion on the respondent Edith Southern Rosamond, and on the other respondents, defendants below, for an order changing the venue from Greenville county to Anderson county and transferring the case to Anderson county for trial. Said motion and application was based on an affidavit; the record in the case of H. L. Rosamond, plaintiff, against Lucas-Kidd Motor Company, Inc., et al. and the pleadings in said case, also on the pleadings in a former case brought by Mrs. Edith Southern Rosamond against Lucas-Kidd Motor Company, Inc., Dorothy Farrow, Ralph Hayes, and one 1934 Ford Tudor, motor No. 1519923; the order of Judge G. Dewey Oxner, dated June 26, 1936, transferring the last-named cause of action to Anderson county for trial; and the voluntary nonsuit entered in said case. Following the service of the notice of motion to change venue, and reserving all rights thereunder, the defendants-appellants answered the complaint.

The motion to change the venue in the last brought action was heard by Judge Bellinger, who by an order bearing date January 18, 1937, refused the motion. At this time, H. L. Rosamond had not filed an answer to the complaint, but it was stated that he would deny all delicts charged to him.

Appellants come to this court alleging error in refusing the motion for change of venue, in that the showing made therefor was sufficient and demonstrated that the respondents Farrow and Rosamond were joined as defendants for the sole purpose of depriving the appellants of the right to have the case tried in the county of their residence.

This action, in railroad parlance, is the "second section" of the suit of H. L. Rosamond v. Lucas-Kidd Motor Co., Inc., et al., 182 S.C. 331, 189 S.E. 641.

The attorneys for appellants in this present case have avoided the pits into which they fell in the above-reported case. We can therefore go directly to the merits of the motion, which necessitates a brief recital of facts additional to those contained in the preliminary statement herein.

The case of H. L. Rosamond, the husband of the respondent Edith Southern Rosamond, against appellants, was tried upon the theory that Mr. Rosamond, while driving his automobile, accompanied by his wife, to the right of the road on which he was traveling, and at a rate of speed of from 20 to 25 mile per hour, was injured, by the appellant Ralph Hayes the agent of the appellant Lucas-Kidd Motor Company, Inc., negligently, carelessly, recklessly, willfully, and wantonly, while in a drunken condition, driving an automobile, the property of the last-mentioned appellant, on the wrong side of the road, at a high and dangerous speed, and into and against the automobile of said H. L. Rosamond. Mrs. Rosamond, the real respondent herein, testified in behalf of her husband, and against the appellants. At that time she testified that her husband at the time, or just prior to the time, the car in which they were riding was run into by Mr. Hayes, was driving at about 25 to 30 miles an hour, and upon seeing the car Hayes was driving approaching them at a high rate of speed, which she estimated to be 60 miles per hour, apparently out of control, and on the wrong side of the road, her husband put on brakes, and, when they were struck, the car in which she and her husband were riding was not traveling over 20 miles per hour.

It should here be noted that Dorothy Farrow, who was riding with Hayes, was made a codefendant with the appellants in the suit of Mr. Rosamond, but was put on the witness stand by Mr. Rosamond, and was completely exonerated of even negligence. In fact, there was apparently no effort on the part of Mr. Rosamond to procure a judgment against her.

In the first complaint of the respondent Mrs. Edith Southern...