White v. Nichols

• Citation: 1 S.E.2d 916,190 S.C. 45
• Decision Date: 15 March 1939
• Docket Number: 14844.
• Parties: WHITE v. NICHOLS et at.
• Court: South Carolina Supreme Court

1 S.E.2d 916

190 S.C. 45

WHITE v. NICHOLS et at.

No. 14844.

Supreme Court of South Carolina

March 15, 1939

Haynsworth & Haynsworth, of Greenville, and Hamilton, Gaston &amp Hamilton, of Chester, for appellants.

J Means McFadden, of Chester, for respondent.

BAKER Justice.

There is but one issue in this case. Is Maxine Nichols an immaterial defendant, and joined solely for the purpose of laying venue in Chester County, or, stated conversely, is Maxine Nichols a bona fide defendant?

This action arose out of a collision between an automobile operated by the appellant, Frank L. Buxton, the alleged agent and representative of his co-appellants, and a motorcycle driven by respondent. The collision occurred on West End Street near the intersection of Oakland Street in the City of Chester. Appellants are residents of Greenville County, and their co-defendant is a resident of Chester County.

We here set out paragraph three of the complaint:

"That on the morning of June 6th, 1938, at approximately eight o'clock A. M., as plaintiff was proceeding from his home on West End Street of the City of Chester to his place of business on Columbia Street of said City, riding upon his motorcycle, and riding in an easterly direction, approaching the intersection of said West End Street and Oakland Avenue of said City an automobile, driven and operated by defendant Maxine Nichols, was driven from said Oakland Avenue into West End Street, causing plaintiff herein to decrease the speed of his motorcycle to such an extent that he was traveling at an extremely slow rate of speed; and that, as plaintiff decreased his speed as aforesaid, and was proceeding at a very slow rate of speed, and in a very careful, cautious, and prudent manner, keeping to his right of the center of said West End Street, he and the motorcycle upon which he was riding were run into, against and over from his rear by defendant Plymouth Coach, S. C. 1937-1938 License No 25--604, said Plymouth Coach being, at said time and place, driven and operated by defendant Frank L. Buxton; and that, in the ensuing collision resulting from his being run into from behind as aforesaid, plaintiff was thrown upon the pavement of said West End Street, was knocked unconscious, and was seriously, dangerously, and critically injured, and suffered severe and lasting injuries and damages." (Italics added.)

It is then alleged that the injuries to respondent were directly and proximately caused by and due to one or more of the careless delicts of the appellant Buxton in the operation of the automobile, concurring with one or more of the careless acts of the defendant Maxine Nichols. The acts of negligence, etc., on the part of the appellant Buxton are set out at great length. Those on the part of Maxine Nichols are not so numerous. Sub-sections (d) and (e) are as follows:

" (d) In that, despite the fact that West End Street of the City of Chester is an express highway, and that those traveling upon said West End Street have the right of way over those entering from Oakland Avenue, defendant Maxine Nichols drove the motor vehicle which she was operating from Oakland Avenue into West End Street in such manner as to make it necessary for plaintiff to slow down and almost stop in order to prevent a collision between plaintiff and defendant Maxine Nichols;

"(e) In that defendant Maxine Nichols entered West End Street disregarding the 'Stop' sign on Oakland Avenue and in violation of the ordinance of the City of Chester in such cases made and provided;"

It will be noted from the above that it is very questionable, conceding the allegations of the complaint to be true, if the injury to respondent was proximately caused by the alleged concurring acts of negligence of Maxine Nichols, or was only remotely caused thereby. The allegations are definitely that such act on the part of Miss Nichols caused respondent "to decrease the speed of his motorcycle to such an extent that he was traveling at an extremely slow rate of speed; and that, as plaintiff (respondent) decreased his speed as aforesaid, and was proceeding at a very low rate of speed, *** he and the motorcycle upon which he was riding were run into, against and over from his rear * *" by the automobile operated by Buxton. And in allegations of negligence of Miss Nichols, that she "drove the motor vehicle which she was operating from Oakland Avenue into West End Street in such a manner as to make it necessary for plaintiff (respondent) to slow down and almost stop in order to prevent a collision between plaintiff (respondent) and defendant Maxine Nichols." Before answering appellants served notice of motion for a change of venue upon the grounds that they are residents of Greenville County are the real defendants, and that Maxine Nichols, a resident of Chester County, was made a party defendant solely in order to lay venue in the last mentioned County where the plaintiff-respondent resides.

Maxine Nichols answered denying all allegations of negligence on her part, and specifically denied driving out into West End Street, setting forth that her car was motionless at the stop sign at the intersection of said Streets at the time of the collision between the motorcycle and the car driven by Buxton.

At the hearing on the motion, in addition to the affidavits hereinafter referred to, it was brought out that on July 8, 1938, more than a month after the cause of action, if any, arose, respondent had filed an attachment suit in the Court of Common Pleas for Chester County against the defendant automobile, Frank L. Buxton and Meadors Manufacturing Co., without naming Maxine Nichols as a party defendant, and in his affidavit for a warrant of attachment against the automobile of appellants, alleged that his injuries and damages were caused and occasioned solely and entirely by the reckless manner in which Buxton was driving and operating the automobile upon West End Street in the City of Chester.

A synopsis of the affidavits of appellants used on the hearing is: (1) Frank L. Buxton, that the automobile on Oakland Avenue, operated by a party he afterwards learned was Miss Nichols, was noticed by him, and that this automobile did not enter West End Street prior to the collision between his car and the motorcycle of respondent; and that it had nothing whatsoever to do with the occurrence of the accident. (2) Frank R. Caldwell, a life-long resident of Chester, one of the first ones to reach the scene of the accident, and who helped Chief of Police of Chester, S. T. Weir, put respondent in the automobile of Miss Nichols, which was stopped in Oakland Avenue. His attention was attracted to the scene by the motor of the motorcycle running fast where it lay upon the street, and at that...