Utsey v. Charleston, S. & N.R. Co.

• Decision Date: 13 March 1893
• Citation: 17 S.E. 141,38 S.C. 399
• Parties: UTSEY v. CHARLESTON, S. & N. R. CO.
• Court: South Carolina Supreme Court

17 S.E. 141

38 S.C. 399

UTSEY v. CHARLESTON, S. & N. R. CO.

Supreme Court of South Carolina

March 13, 1893

Appeal from common pleas circuit court of Colleton county; James Aldrich, Judge.

Action by W. B. Utsey against the Charleston, Sumter & Northern Railroad Company. From an order, made at chambers, changing the venue, plaintiff appeals. Affirmed.

The following are the motion papers referred to in the opinion:

"Notice of motion: You will please take notice that the defendant will move the Honorable James Aldrich, at his chambers in Aiken, S. C., on the 5th day of May, 1891, at 12 o'clock meridian of said day, or as soon thereafter as counsel can be heard, for an order to change the place of trial of this action from the court of common pleas for the county of Colleton to the court of common please in and for the county of Sumter, in the state above written. Said motion will be made upon the pleadings herein, and upon the affidavit of J. H. Averill, Esq., the general manager of the Charleston, Sumter and Northern Railroad Company, a copy of which is herewith served upon you, and upon the demand to change the place of trial, upon and for the ground that the convenience of witnesses and the ends of justice will be thereby promoted. C. S. Nettles Defendant's Attorney."

"Affidavit Personally appeared before me, the subscribing officer, Col. J. H. Averill, who, after being duly sworn, says: (1) That he is the general manager of the Charleston, Sumter and Northern Railroad Company. (2) That said railroad lies in the counties of Marlboro, Darlington, Sumter, Orangeburg, Colleton, Clarendon, and Berkeley, a very small portion, to wit, the southern terminus, being in the county of Colleton; and that the central and headquarters of the said railroad is located at Sumter, in the county of Sumter. (3) That this action has been commenced against deponent's company in the county of Colleton, and that the summons and complaint herein were served on the 1st day of April, 1891. (4) That he has fully and fairly stated the case in this cause to C. S. Nettles, Esq., general counsel of the Charleston, Sumter and Northern Railroad Company, who resides in the city of Darlington, in the state above written; and that after such statement he is by him advised, and fully believes, that the said company has a good and substantial defense on the merits of this action. (5) That I have fully and fairly stated to my counsel the facts which I expect to prove by each and every one of the following witnesses, namely, J. M. Brand, C. L. Martin, B. K. De Lorme, H. Schesrin, A. White, A. S. Brown, H. Frank Wilson, Dr. J. A. Mood, Frank O'Donnell, and each and every one of them is a material and necessary witness for the defense in the trial of this cause, as I am advised by my said counsel, and fully believe, and without the testimony of each and every of the said witnesses I cannot safely proceed to the trial of this cause, as I am also advised by my said counsel and fully believe; that each and every one of the said witnesses reside in the city of Sumter, in the county of Sumter, and state above written; and that the said witnesses, J. M Brand, C. L. Martin, and B. K. De Lorme are employes of the said railroad company, engaged in the company's business in the said city of Sumter. (6) The facts which I expect to prove by the said witnesses are as follows: By J. M. Brand, C. L. Martin and B. K. De Lorme, that twice, during March, W. B. Utsey, the plaintiff in this action, interfered with matters pertaining strictly to the province of the general manager; that he was insubordinate and impertinent to the general manager, and that he was warned that if he did so again he would have to leave the service of the company; and that in April, 1890, upon the occasion of an excursion, which was arranged to run from Sumter to Pregnalls and return, for the benefit of the merchants of Sumter, the plaintiff herein disobeyed positive instructions which were given him by I. W. Fowler, who was then the general manager of the road. By the witnesses H. Schesrin, A. White, A. S. Brown, H. Frank Wilson, Dr. J. A. Mood, and Frank O'Donnell, that during April, 1895, upon the occasion of the excursion herein above mentioned, the plaintiff herein became intoxicated, was guilty of disobedience to the orders of the general manager of the road, whom he cursed and assaulted, to wit: On the return trip some party interfered with the running of the train by constantly pulling the bell cord, and when Col. Fowler, the general manager, attempted to get into one of the coaches, to ascertain the cause of the disturbance, the plaintiff grabbed him by the arm and clothing, and prevented him from entering the car. Col. Fowler ordered him to take his hands off, and also to leave the train. That after a space of a few minutes and a good deal of abuse he did remove his hands from the person of Col. Fowler, but did not leave the train, as he was ordered to do. That when the train arrived at a point about fifteen miles from Sumter a man jumped out of a car window. The train was running about twenty miles an hour. The conductor stopped the train, and reported to Col. Fowler the fact that a man had jumped out of a window. Col. Fowler started with others to pick up the body, which, fortunately, had received no injury, when the plaintiff jumped off the rear platform, and attempted to stop him. That Col. Fowler said to him, 'Mr. Utsey, I wish you would not interfere with my business any more,' and to which he replied, 'You can go to hell,' and left him. (7) That, as deponent is informed and believes, such contract as was made between the plaintiff and the defendant was entered into in the city of Sumter, and that all the facts and circumstances relating thereto, or to his discharge from the service of this company, or to the cause of such discharge, occurred in the county of Sumter. (8) That the town of Walterboro, which is the county seat of Colleton county, is situate at considerable distance from the line of deponent's railway, and is very difficult to be reached; that if deponent and his witnesses should be required to attend trial at Walterboro, they will be compelled to go to a distant destination, traveling over two different systems of railway, a distance of nearly two hundred miles, to their great inconvenience and expense; and that the convenience of witnesses and the ends of justice would be greatly promoted by changing the place of trial of this action from the county of Colleton to the county of Sumter. J. H. Averill, Gen. Manager C., S. & N. R. R."

"Order: A motion in this cause having been made before me at chambers, in behalf of the defendant, to change the place of trial from the county of Colleton to the county of Sumter, upon the notice of the motion, and after hearing read the affidavit of J. H. Averill, Esq., the general manager of C., S. & N. R. R., by which it is made to appear that the defendant has nine material witnesses, who reside in the city of Sumter, and the plaintiff having made no showing that he has material witnesses resident at Walterboro, nor denial of the facts stated in the affidavit of J. H. Averill, but resting this application solely upon the ground that the judge at chambers has no right to grant the order asked for; and after hearing argument for the motion by C. S. Nettles, Esq., and against by Mr. Croft on behalf of Howell, Murphy & Farrow: It is ordered that the place of trial of this action be and is hereby changed from the court of common pleas for the county of Colleton to the court of common pleas for the county of Sumter, upon and for the reason that the convenience of the witnesses for the defendant and the ends of justice will be thereby promoted. Further ordered, that this order be filed with the clerk of the court for the county of Colleton, and that all further proceedings herein be had in the court of common pleas for the county of Sumter; and it is further ordered that all papers in the cause shall be transferred accordingly. James Aldrich, Judge Second Circuit."

Howell, Murphy & Farrow, for appellant.

C. S. Nettles, for respondent.

POPE J.

After issue joined in an action for damages arising from an alleged breach of contract, a motion was made, after due notice, by defendant, to change the place of trial from the court of common pleas for Colleton county to that of Sumter county, on the ground that the convenience of witnesses and the ends of justice would be thereby subserved. The notice of motion, affidavit accompanying the same, and the order of his honor, Judge Aldrich, who heard the same at chambers in Aiken, will be set out in the report of the cause. The plaintiff now seeks to reverse the order referred to, and as his grounds therefor complains: (1) Because his honor, Judge Aldrich, had no jurisdiction at chambers to grant the order; (2) because the notice of application for the order was insufficient, and did not confer jurisdiction to grant such order; (3) because the affidavit did not show, nor did the judge find, that the convenience of witnesses and the ends of justice would be promoted by changing of the place of trial; (4) because the application for a change of venue was not supported by affidavits showing that a fair and impartial trial could not be had in the county of Colleton.

As was stated in the able argument of appellant, the appeal involves substantially these propositions: First. Has a circuit judge power, at chambers, to make an order changing the venue in a case pending in the circuit court? Second. If he has such power, and it is a matter resting in his discretion, is it not a judicial discretion, and, if so, does the affidavit authorize the exercise of the power? Third. Can the venue be changed by an...