Tucker v. Ingram

• Decision Date: 14 July 1938
• Docket Number: 14723.
• Citation: 198 S.E. 25,187 S.C. 525
• Parties: TUCKER v. INGRAM et al. SAME v. PURE OIL CO. OF THE CAROLINAS.
• Court: South Carolina Supreme Court

198 S.E. 25

187 S.C. 525

TUCKER v. INGRAM et al.

SAME v. PURE OIL CO. OF THE CAROLINAS.

No. 14723.

Supreme Court of South Carolina

July 14, 1938

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

Actions by M. B. Tucker against C. C. Ingram and the Pure Oil Company of the Carolinas, and by M. B. Tucker against the Pure Oil Company of the Carolinas. From orders denying motions to transfer the cases to another county, defendants appeal.

Affirmed.

The order of Judge Bellinger follows:

This matter came on to be heard before me on February 10th, 1938 at chambers, on motion of the defendants to change venue to Sumter County, based upon the convenience of witnesses and upon the further ground that the corporate defendant being a nonresident of the State of South Carolina, the suit should be removed to the county in which the resident defendant, C C. Ingram resides, to wit, Sumter County.

It is alleged in the complaint and admitted in argument by the attorneys for the defendants, that the corporate defendant Pure Oil Company of the Carolinas, is doing business in Richland County, with offices and agents in said county. Defendants contend that because it is a foreign corporation the local defendant is entitled to have the case removed to the county of his residence, citing and relying upon the cases of Barfield v. Southern Cotton Oil Company, 87 S.C. 322, 69 S.E. 603, City of Sumter v. U.S. F. & G. Company et al., 116 S.C. 29, 106 S.E. 778, and Halsey v. Minnesota-S. C. Land & Timber Company, 168 S.C. 18, 166 S.E. 626.

In the case of Barfield v. Southern Cotton Oil Company, 87 S.C. 322, 69 S.E. 603, the Court held that (quoting syllabus): "An action against a foreign corporation and a resident of this State, in which the venue is laid in a county other than that of the resident, should, on his motion, be transferred to the county of his residence for trial."

The facts set out in the reported case are very meager. In Hayes v. Seaboard Air Line Railway, 98 S.C. 6, 81 S.E. 1102, in an opinion by an undivided Court, which Mr. Justice Hydrick who wrote the opinion in the Barfield Case concurred in, it was said: "In that case, however, it was not made to appear that either of the defendants was a resident of Lexington county, from which the case was transferred to Richland county, where both defendants resided."

And in Campbell v. Mutual Benefit Health & Accident Association, 161 S.C. 49, 159 S.E. 490, 491, the Court said further with reference to the Barfield Case: "In the Barfield Case, it was plainly stated that one of the defendants was a foreign corporation but nothing was said in the opinion there about the foreign corporation being domesticated. Nothing was said about its domestication in the later case of Hayes v. Railway. From what was said by this court in the Hayes Case of the Barfield decision, it is evident that if the foreign corporation had established a residence in the county in which the suit was brought by having an office and agent in such county for the transaction of business, the result of the decision of the court would have been otherwise."

Counsel for the defendants rely strongly upon the case of City of Sumter v. U.S. F. & G. Company et al., 116 S.C. 29, 106 S.E. 778. The reported facts in that case are far from clear, and though the case has been cited twice, once in Halsey v. Minnesota-S. C. Land & Timber Company, 168 S.C. 18, 166 S.E. 626, and again in Hodge v. Sovereign Camp, 134 S.C. 343, 132 S.E. 822, in each instance the Court merely stated that the facts in the case under consideration were so entirely different that the decision was not controlling. In any event, if the City of Sumter Case had any bearing on the issue here, it would appear to have been overruled by the case of Campbell v. Mutual Benefit Health & Accident Association, cited supra, in which the rule governing matters of this kind is fully set out.

Counsel for defendants also contend that the case of Halsey v. Minnesota-S. C. Land & Timber Company, 168 S.C. 18, 166 S.E. 626, has some bearing on the point at issue here. With that view I am not prepared to agree. In that case, suit was brought in Charleston County, against the Timber Company and one Montague, a resident of Charleston. After the case had been tried once and appealed to the Supreme Court and sent back for a new trial, Montague died. The Timber Company then moved to have the venue changed to Dorchester County, where it had offices and agents, it having none in Charleston County. The Court held that the venue was fixed "at the time of the commencement of the action" (page 627) and that Montague having died, the cause of action had merely abated as to him, and the case was properly triable in Charleston County, despite the fact that the Timber Company was not doing business in that county. There was no finding in that case that the plaintiffs had not originally had a cause of action against Montague, but merely that it had abated by reason of his death. Moreover, that suit was brought in the county where the resident defendant lived, so that the facts entirely differentiate it from the case at bar, where suit is brought in Richland County where the corporate defendant is doing business, and in a county other than that in which Ingram resides.

From the pleadings and admissions of counsel, it appears that this case is practically on all fours with that of Campbell v. Mutual Benefit Health & Accident Association, 161 S.C. 49, 159 S.E. 490, cited supra. There, action was brought in Richland County against the Mutual Benefit Health and Accident Association and a resident of Greenville County. The defendants sought to remove the case to Greenville County, though it appeared that the insurance company had an office and an agent in Richland, and the Court in refusing to change the venue, laid down the following rule as controlling in all matters of this kind: "If a foreign corporation, whether or not domesticated, having an agent and office for the transaction of business in a particular county, is sued in that county with a resident of another county of the state, the case may be properly tried in the county in which the action is brought. If the foreign corporation is sued in a county where it has no agent or place of business, along with a codefendant who is resident of another county of the state, the place of trial should be changed to the county of the residence of the codefendant."

The motion of the defendants, therefore on the ground that the corporate defendant is a non-resident and that the defendant Ingram is a resident of Sumter County, must be refused.

As to the additional ground that to remove the case to Sumter County will be for the convenience of witnesses, Section 426 of the Code of 1932 states that the Court may change the place of trial "When the convenience of witnesses and the ends of justice will be promoted by the change." The defendants' motion is made on the sole ground that it will be for the convenience of witnesses for the case to be tried in Sumter County. Numerous decisions of our Court have held that the convenience of witnesses and the promotion of justice will not warrant a change of venue unless both appear together. Sample v. Bedenbaugh, 158 S.C. 496, 155 S.E. 828, Utsey v. R. Co., 38 S.C. 399, 17 S.E. 141, and Castles v. Lancaster County, 74 S.C. 512, 55 S.E. 115.

In the late case of Dennis v. McKnight, 161 S.C. 213, 159 S.E. 557, the Court in discussing this question said (page 558): "In the case of Castles v. Lancaster County, 74 S.C. 512, 55 S.E. 115, it was held that the meaning of the statute in coupling the 'convenience of witnesses' and 'the ends of justice' together as a single ground for change of venue, was to authorize a change on this ground only when both the 'convenience of witnesses' and 'the ends of justice' would be promoted. It follows that the ground stated in the notice of the motion, 'that justice will be promoted by such change,' cannot be considered, as it omits the accompanying element of convenience of witnesses."

The motion of the defendants, therefore, on the ground that it will be for the convenience of witnesses for the case to be tried in Sumter County, must also be refused.

It is therefore ordered that the motion of the defendants herein to change the place of trial from Richland to Sumter County be, and it is hereby refused.

W. F. Wimberly, of Charlotte, N. C., and George D. Levy and Shepard K. Nash, both of Sumter, for appellants.

Tompkins & Tompkins, of Columbia, for respondent.

L. D. LIDE, Acting Associate Justice.

These two cases were for convenience submitted on the printed briefs together, and will be so considered and decided by us. The defendant Pure Oil Company of the Carolinas is a North Carolina corporation, but has offices and agents in Richland County, in this State, and transacts its corporate business in that County and also in Sumter County. Both suits were brought in Richland County by the plaintiff, M. B. Tucker, the one first above stated (hereinafter called the first case) being against the defendant, C. C. Ingram, a resident of Sumter County, and the Company. The second case above stated (hereinafter called the second case) is against the Company alone.

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