Shelton v. Southern Kraft Corp.

• Decision Date: 31 July 1940
• Docket Number: 15135.
• Parties: SHELTON v. SOUTHERN KRAFT CORPORATION (two cases).
• Court: South Carolina Supreme Court

10 S.E.2d 341

195 S.C. 81

SHELTON v. SOUTHERN KRAFT CORPORATION (two cases).

No. 15135.

Supreme Court of South Carolina

July 31, 1940

M L. Meadors, of Florence, and H. L. Smith, Jr., of Georgetown for appellant.

George W. Keels, G. Badger Baker, and W. Stokes Houck, all of Florence, for respondent.

BONHAM Chief Justice.

These are two actions between the same parties and involving the same facts and issues. By consent they were heard together on Circuit, with the understanding that one opinion should determine both cases.

It appears from the statement contained in the transcript of record that the venue was laid in Florence County. Before answering, but specifically reserving its right to answer or otherwise plead in the actions, the defendant made a motion for change of venue in each case to the Court of Common Pleas for Georgetown County upon the ground that the defendant's place of residence is Georgetown, S. C.. and hence the Civil Court of Florence has no jurisdiction of the defendant nor of the alleged cause of action; hence, that Florence is not the County in which to try the said actions.

Each complaint alleges that defendant is a foreign corporation and further alleges that plaintiff is a resident of Florence County, and that defendant owns property, does business and has agents within the County of Florence.

The motions were heard together by the Judge of the Civil Court of Florence on affidavits presented by both parties. Judge Sharkey refused the motions in an order dated July 31, 1939. On motion of defendant, Judge Sharkey reopened the matter and allowed the introduction of other evidence by affidavits. On October 10, 1939, the trial Judge filed another order in which he held that the preponderance of the evidence was still with plaintiff and he therefore adhered to the decision announced in his order of July 31, 1939.

The appeal is from both of such orders and is based on 16 exceptions. We do not think it is necessary to specifically consider each exception; but our opinion will, in principle, embrace the cardinal and controlling issues.

The trial Judge holds that the granting of the motion for change of venue is one within his discretion. In some such motions that statement is correct. For instance, if the motion to change the venue be predicated on the ground of convenience of witnesses and the promotion of justice, it might be said that the motion is addressed to the discretion of the Court; but if, as in the present case, the motion is based upon the ground that Georgetown County is the place of residence of the defendant, then it is a question of law, as it is undisputed that defendant's place of residence is in Georgetown and the Court is bound to send the case to that County for trial, unless the evidence shows that "the defendant has established a residence in Florence County for venue purposes". The trial Court has found just that in this case. Is such conclusion or finding a correct one?

What is necessary to show that a foreign corporation has established a residence for venue purposes in a county other than that in which its legal residence is admitted to be? It cannot be, and is not, denied that defendant is a foreign corporation engaged in the manufacture of paper from pine pulp, with its factories, its corporate buildings, offices and business in Georgetown County. To maintain the contention that it has a residence for venue purposes, it must be shown more than that it has an agent in that County; it must have offices for the transaction of its corporate business. The trial Judge recognizes this principle of law. He says in his order of July 31, 1939, which is affirmed by his order of October 10, 1939:

"A foreign corporation whether or not domesticated, may be sued in any County of the State wherein it has an agent and office for the transaction of its business, but if the foreign corporation is sued in a County where it has no agent or place of business then the place of trial should be changed to the County wherein the corporation does have offices and agents. See Campbell v. Mutual Benefit [Health & Accident] Association, 161 S.C. 49, 159 S.E. 490; Halsey v. Minnesota-South Carolina Land & Timber Company, 168 S.C. 18, 166 S.E. 626; Tucker v. Pure Oil Co. of the Carolinas, 187 S.C. 525, 198 S.E. 25. ***

"The question for determination, is whether or not W. H. Grover is an agent of defendant, it being admitted that he is a resident of Florence County, or an independent contractor, as appearing from the exhibits and for the purpose of this hearing. If the defendant has established an office and agent in Florence County for the transaction of its business then the venue is properly laid in Florence County. Tucker v. Ingram, 187 S.C. 525, 198 S.E. 25.

"I have given this matter much thought and consideration and for that reason the filing of this report has been delayed. Notwithstanding a foreign corporation is ordinarily deemed a non resident of the State it does establish a residence for venue purposes by having an office and agent in a County for the transaction of business ***."

The Code of Civil Procedure provides for the place of trial of actions as follows:

Section 421. "Actions to Be Tried Where Cause of Action Arose."

Section 420. "Actions to Be Tried Where Subject Matter Situated."

Section 422. "Actions to Be Tried in County Where Defendant Resides-- Proviso. In all other cases the action shall be tried in the county in which the defendant resides ***." (Italics added)

The trial Judge realizes that this is an imperative requirement of the Code.

In the utterance from his order which we have hereinabove quoted, he says: "If the defendant has established an office and agent in Florence County for the transaction of its business, then the venue is properly laid in Florence County." Citing Tucker v. Ingram, supra. And the trial Judge says that this is a matter of fact, and, inasmuch as he holds that the defendant has established a residence in Florence County for the purpose of venue, his finding cannot be questioned by this Court. We do not assent to this proposition. As we have said if the question were one for the change of venue for the convenience of witnesses and the promotion of justice, the matter would be one within the limit of the discretion of the Judge. But, as he himself states, that issue is not involved here. The only question is whether the defendant has a legal residence, for the purpose of venue, in Florence County, and that question may be considered by this Court in view of the admitted fact that the residence of defendant, its mill for the manufacture of paper from pine pulp, and its offices are situated in Georgetown County. In the case of Rosamond v. Lucas-Kidd Motor Company, 183 S.C. 544, 545, 191 S.E. 516, 518, Mr. Justice Baker, expressing the opinion of the Supreme Court said: "We are very reluctant to reverse the ruling of a circuit judge, especially when the main issue is one of fact, but as was stated in the case of Adams et al. v. Fripp, et al, 108 S.C. 234, 237, 94 S.E. 109, the testimony for the movants so preponderates that we are persuaded that the court was manifestly wrong not to have concluded that the venue had been laid in the wrong county. *** But on a motion of this nature, the judge before whom it is made, sits both as judge and jury."

The trial Judge declares that the plaintiff, by his affidavits, so preponderates on the evidence as to show that the defendant has established a residence for the purposes of venue in Florence County. We do not concur in this statement. He himself has approved the rule that in order to establish such residence, the defendant must have established or maintained an office and an agent in Florence County for the transaction of its corporate business.

We have examined with care the affidavits submitted by plaintiff and nowhere in them do we find that it is asserted that defendant established or maintained or maintains an office in Florence County for the transaction of its corporate business. Nor does the trial Judge so find in either of the orders from which this appeal comes. Whereas K. H. Powell, in his first affidavit, describes himself as an agent of defendant, he declares that defendant is a foreign corporation engaged in business in Georgetown County, with mill and offices in that county, and that never at any time since he has been employed by defendant has it had offices or agents for the transaction of its business in any county in South Carolina except Georgetown. In his affidavit, A. A. Donham states that he is Divisional Superintendent, Pulpwood Operations, for Georgetown Mill of Southern Kraft Corporation, the defendant, that at the commencement of this action defendant had, and has maintained, at Georgetown in that County its only office and plant in South Carolina; that it did not then, and does not now, maintain any office in the County of Florence, and was not then and is not now engaged in the transaction of any business in Florence County. W. H. Grover states in his affidavit that he is not the agent, representative or employee of the defendant in any capacity whatsoever; that he has read the affidavit of O. H. Shelton; that the arrangement therein detailed with defendant is entirely different from the arrangement which he had transacted with defendant. H. L. Smith states in his affidavit that he knows of his own knowledge that K. H. Smith has been designated by Southern Kraft Corporation as its local and office manager for its mill at Georgetown, S. C.

Black's Law Dictionary, 3rd Ed., defines residence thus: "Living or dwelling in a certain place permanently, or for a considerable length of time."

In the case of Jenkins v. Penn Bridge Company, 73 S.C. 526 53...