Windham v. Pace
| Decision Date | 15 December 1939 |
| Docket Number | 14987. |
| Citation | 6 S.E.2d 270,192 S.C. 271 |
| Parties | WINDHAM v. PACE et al. BURNEY v. SAME. |
| Court | South Carolina Supreme Court |
Nathans & Sinkler and B. M. Thomson, Jr., all of Charleston, for appellants.
J D. Parler, of St. George, and Robinson & Robinson and W Turner Logan, Jr., all of Columbia, for respondents.
The Circuit Court refused motions made in behalf of the two defendants in these cases, to change the place of trial from Dorchester County to Charleston County. The record in the lower Court included the complaint and answers, and numerous affidavits submitted by each side, and that Court held that the venue was properly laid under Section 8511, Code of 1932.
The actions were brought by the plaintiffs, who are residents of Dorchester County, to recover damages for personal injuries sustained by them when an automobile in which they were riding, on a public highway in Dorchester County, was struck from the rear by an automobile owned and operated by the individual defendant, Pace, a resident of Charleston County. Pace at the time of the accident was transacting the business of the corporate defendant, a Georgia corporation, which holds a certificate from the Public Service Commission of this state authorizing it to operate a motor vehicle line for the transportation of freight between Charleston, South Carolina, and Augusta, Georgia. The issues are identical in the two cases, and the decision of one case will control the other. The appeals were heard together in this Court. For the sake of convenience they will hereafter be referred to in the singular.
The defendant company, a foreign corporation, maintains offices and has agents in this state only in Charleston County, but transports freight as a motor carrier through Dorchester County.
At the time of the accident one of the motor trucks which the corporate defendant operated, was forced to park on a public highway in Dorchester County on account of tire trouble. The individual defendant, Pace, it is alleged, was the manager of the Charleston office of the corporate defendant, and at the time his automobile collided with that of the plaintiff he was performing the duty of transporting a wheel and a tire to the disabled motor truck, which was awaiting the arrival of these essential parts before it could proceed on its way.
The issues presented require a construction of Section 8511 as applied to this question: Is Dorchester County the proper venue for the trial of a tort action brought by a resident of that county against an individual who is a resident of Charleston County, and a Georgia corporation, whose only agents and offices in this state are maintained in Charleston County, but which operates its motor freight line as a motor carrier through Dorchester County?
The Circuit Court ruled that the provisions of the Section were sufficiently comprehensive to authorize the bringing of the action in Dorchester County, because the duty performed by Pace, the agent of the corporate defendant at the time of the accident, was directly related to its business of carrying freight on the public highway; that Pace was acting within the scope of his authority, and had general supervision and control of trucks transporting cargoes operating from the Charleston Office.
Since the recent decisions of this Court in Tucker v. Ingram, 187 S.C. 525, 198 S.E. 25, and Warren v. Smith, 190 S.C. 8, 1 S.E.2d 900, no doubt may be entertained as to the venue of actions brought against non-resident corporations and resident personal defendants. We held in those cases that if a foreign corporation, whether domesticated or not, 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 properly be tried in the county in which the action was brought. If the foreign corporation is sued in a county where it has no agent or place of business, along with a co-defendant who is a resident of another county of the State, the place of trial should be changed to the county of the residence of the co-defendant.
But Section 8511, under review, enlarged the venue in the case of a motor carrier. It is assailed by the corporate defendant as violating the Fourteenth Amendment of the Constitution of the United States, upon the ground that it denies to non-resident carriers the equal protection of the law, in that it makes an unfair discrimination, in a constitutional sense, between resident and non-resident motor carriers. The statute reads as follows:
It will be observed that the law provides in the third proviso that in case the owner of the operated motor carrier is a resident of the state, or is a domestic corporation, then it may be sued only in some county through which it operates, but in case of a non-resident corporation it may be sued in any county of the state. The appellants point to this distinction as an unfair discrimination, and assert that it comes under the ban of the Fourteenth Amendment.
In the case of Power Mfg. Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 680, 71 L.Ed. 1165, the Supreme Court of the United States, construing an Arkansas statute, held that a foreign corporation is unconstitutionally deprived of the equal protection of the laws by statutes permitting it to be sued in any county in the state (when it has established its right to do business in the state), whether it does business, or is present, or has a representative in the county of suit or not, while actions against domestic corporations and individuals can be brought only in counties where they are found, or do business, or have a representative.
There is no real distinction, we think, between domestic and foreign motor carriers operating under the Act. Both engage in the same form of business; both make similar use of the highways in the state. The classification is clearly arbitrary. It is not based on a real and substantial difference having a reasonable relation to the subject of the particular legislation. The provision of the statute permitting suits to be maintained against foreign corporations in any county of the state, but limiting the place of trial of actions against individuals and domestic corporations to counties through which they operate, manifestly denies the equal protection of the law within the meaning of the Fourteenth Amendment to the Constitution, U.S.C.A. As was said in Power Mfg. Co. v. Saunders, supra, "There is no more reason for a statewide venue when the action is against a foreign corporation than when it is against a domestic corporation or a natural person", so far as the plaintiffs in such actions are affected.
[3-5] But sustaining the appellant on this ground does not dispose of the case. The unconstitutionality of the statute pertains only to that part of it which allows actions to be maintained against foreign corporations in any county of the state. The last sentence of the proviso: "In case of non-resident or foreign corporations, actions may be brought in any county of the state," fairly interpreted, in connection with the other provisions of the statute, means that an action may be brought against non-resident or foreign corporations not only in counties through which they operate, but in any county of the state. This is the unmistakable legislative intention, and as so construed the section is only partially unconstitutional. The action may still be brought against a non-resident or foreign corporation in any county of the state through which as a motor carrier it operates, thus putting it in the same classification with the owner of an operated motor carrier who is a resident of the state or which is a domestic corporation.
It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part, and if the invalid part is severable from the rest, the portion which is constitutional may stand, while that which is unconstitutional is stricken out and rejected. Townsend v. Richland County, 190 S.C. 270, 2 S.E.2d 777...
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