Wilson v. Southern Furniture Co.

• Decision Date: 10 November 1953
• Docket Number: No. 16796,16796
• Court: South Carolina Supreme Court
• Parties: WILSON v. SOUTHERN FURNITURE CO.

Page 890

78 S.E.2d 890

224 S.C. 281

WILSON v. SOUTHERN FURNITURE CO.

No. 16796.

Supreme Court of South Carolina.

Nov. 10, 1953.

Legge & Gibbs and Hagood, Rivers & Young, Charleston, for appellant.

Thomas P. Bussey, Charleston, for respondent.

STUKES, Justice.

This appeal is from refusal of defendant's motion to change the place of trial from Charleston County (the defendant's residence, where the action was properly brought and should ordinarily be tried) to Beaufort County, which was made under the statute which is now Sec. 10-310 of the Code of 1952, upon the grounds that it would serve the convenience of witnesses and promote the ends of justice. Subsection (3). The order under appeal does not specify which ground appellant failed to establish to the satisfaction of the Court, or whether both. It may, therefore, be fairly assumed that it was intended to refuse the motion on both grounds, although either would have sufficed for refusal. See the many cases cited in the footnotes in 1 Code of 1952, pages 631, 632.

The action is for damages for injuries to person and property which resulted from a collision on December 13, 1949, near Gardens Corner in Beaufort County, between respondent's automobile and appellant's delivery truck. Respondent and his passenger, at the time of the collision, resided in New York and appellant is a South Carolina corporation with its principal place of business in the City of Charleston, Charleston County. The driver of its truck and his helper are residents of Charleston. Respondent was treated by a Charleston doctor and afterward by New York physicians. It appears that there were no eyewitnesses to the accident except the occupants of the vehicles, who were two in each and none of them is a resident of Beaufort County. Immediately after the collision a panel truck ran into the wreckage of the automobile. It was occupied by several people from Walterboro, which is approximately equidistant from Beaufort and Charleston.

Appellant made its motion upon affidavits which established that several Beaufort County residents were near the scene of the collision and would be witnesses for appellant concerning the atmospheric conditions that existed at the time which, apparently admittedly, were a contributing cause of the mishap, and as to the positions of the vehicles afterward, etc.; further that the highway patrolman who investigated the accident is a resident of Beaufort; and that a Beaufort surveyor and photographer have been engaged by appellant in its behalf; and the convenience of all of these witnesses would be better served if the trial should be had in Beaufort, rather than Charleston. In opposition, affidavits in behalf of respondent establish the residence of appellant, its truck driver and helper, in Charleston, and that two other persons who happened to be near the scene of the accident live in Charleston County; the equidistance of the residence of the Walterboro occupants of the third vehicle which was involved, mentioned above; that respondent has engaged a Charleston surveyor and photographer who would be inconvenienced by attendance upon trial at Beaufort; the Charleston and New York residence of the doctors who will testify; and that train and plane connections from New York are, in effect, incomparably better and faster to Charleston than to Beaufort.

The foregoing is a relatively brief resume of the respective factual showings of the parties but we think it sufficient to demonstrate that the case for removal of the trial to Beaufort County was at least offset by that made against it, which justified the discretionary refusal of the motion upon the alleged ground of the promotion of the convenience of the witnesses.

In this situation, affirmance of the order must follow without the necessity of consideration of the second required factor--the promotion of the ends of justice. Moreover, the disposition of such a motion is within the discretion of the hearing court and the exercise of it will not be disturbed on appeal in the absence of an abuse of discretion unless it is, in the words of the opinion in Griffin v. Owens, 171 S.C. 276, 172 S.E. 221, 222, 'so opposed to a sound discretion as to amount to a deprivation of the legal rights of the complaining party.' See also Wade v....