Whitley v. Lineberger Bros., 17438

• Decision Date: 09 June 1958
• Docket Number: No. 17438,17438
• Citation: 104 S.E.2d 70,233 S.C. 182
• Parties: Berry S. WHITLEY, as g.a.l. for Thomas P. Whitley, Jr., Respondent, v. LINEBERGER BROTHERS, Appellant.
• Court: South Carolina Supreme Court

Page 70

104 S.E.2d 70

233 S.C. 182

Berry S. WHITLEY, as g.a.l. for Thomas P. Whitley, Jr., Respondent, v. LINEBERGER BROTHERS, Appellant.

No. 17438.

Supreme Court of South Carolina.

June 9, 1958.

Weinberg & Weinberg, Sumter, Bruce M. White, Union, for appellant.

Mike S. Jolly, Long & Long, David N. Wilburn, Jr., Union, Wesley M. Walker, Greenville, for respondent.

OXNER, Justice.

This action was brought in Union County by a minor to recover damages for personal injuries sustained as a result of a collision between an automobile in which he was riding and a tractor-trailer owned by defendant. The collision occurred on a highway in Pickens County. Defendant moved to change the venue 'from Union County to Pickens County, and failing in that, to change the venue to Greenville County', upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change. Section 10-310(3) of the 1952 Code. The Court below refused the motion and this appeal followed.

Plaintiff is a resident of Georgia and at the time of the accident was riding in an automobile with his parents who were returning to their home in Atlanta. Defendant is a foreign corporation with its principal place of business at Lincolnton, North Carolina. Under these circumstances, plaintiff had a right to elect the county in which he would bring his action. Section 10-303 of the 1952 Code; Dennis v. Atlantic C. L. Railroad Company, 86 S.C. 258, 68 S.E. 465. Of course, this privilege is subject to the right of the Court to change the place of trial for the reasons set forth in Section 10-310(2) and (3).

It is needless to cite authority for the well settled rule that a motion for change of venue upon the ground that the convenience of witnesses and ends of justice would be thereby promoted is addressed to the sound discretion of the judge who hears it, and his ruling thereon will not be disturbed except upon a clear showing of abuse of discretion amounting to manifest error of law. The question presented, therefore, is whether the refusal of defendant's motion was manifestly erroneous.

It seems to be conceded that the only eye-witnesses were the occupants of the two vehicles, all of whom are non-residents. According to an affidavit by one of his attorneys, the defendant will have as witnesses in addition to the driver of the tractor, four mechanics from Easley and Greenville who after the accident examined both the car and tractor-trailer, a commercial photographer from Greenville who made pictures of the locale and talked to plaintiff's mother after the accident, a highway patrolman from Pickens County who investigated the accident, and several persons from Pickens County who saw the automobile in which plaintiff was being transported to...