Wingard v. Sims
| Decision Date | 07 November 1952 |
| Docket Number | No. 16681,16681 |
| Citation | 222 S.C. 396,73 S.E.2d 279 |
| Court | South Carolina Supreme Court |
| Parties | WINGARD v. SIMS. |
Colin S. Monteith, Jr., Columbia, for appellant.
Rosen & Horger, Orangeburg, for respondent.
This appeal is from an order refusing a motion made by the appellant for a change of venue from Orangeburg County to Richland County. The motion was made upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change, and was based upon Section 426, subdivision 3, of the 1942 Code.
The accident which gave rise to this action occurred on November 3, 1951 on the Columbia-Newberry Highway about seven miles north of the City of Columbia, at which point there was a collision between the automobile driven by Hugo S. Sims, Sr. and an automobile driven by the plaintiff, Robert L. Wingard. As a result of this collision, which took place about 1:15 o'clock a. m. during a heavy rainfall, Mr. Sims, Sr., lost his life. And the plaintiff alleges that he was painfully and permanently injured in the same accident.
The action was commenced in Orangeburg County against Hugo S. Sims, Jr., as administrator of the estate of his father, and the plaintiff alleges that the accident was due to the negligent, reckless and wanton acts of Hugo S. Sims, Sr., in driving his car at a reckless and dangerous rate of speed, and on the wrong side of the road.
In addition to a general denial, the defendant set up the defense of contributory negligence on the part of the plaintiff in driving his car, at the time of the accident, on the wrong side of the road, under the influence of alcohol, and at a high, reckless, and dangerous rate of speed. A counterclaim was also alleged by the defendant, to which the plaintiff filed his reply.
In support of the motion for a change of venue, the record contains the affidavit of appellant and one by his attorney. It appears from appellant's affidavit that he has as witnesses four doctors who attended him following the accident, one of whom resides in the City of Columbia; three others reside at the Veterans Hospital in Richland County; an eyewitness who lives in West Columbia; a witness from Tampa, Florida; the former employer of appellant, who lives in Columbia; and the ambulance driver and his assistant who took appellant from the scene of the accident, both of whom reside in Richland County.
It is argued by counsel for appellant that the change of venue to Richland County should have been granted because it would serve the convenience of these witnesses, and that it would be in furtherance of justice that these witnesses be allowed to testify before jurors in the community in which they live. And furthermore, the scene of the accident was only seven miles from Columbia and the locus of the accident would be more accessible, and a much shorter distance for the jurors to visit and inspect, if the case should be tried in Richland County.
It will be noted that among the witnesses listed by appellant, only one is alleged to be an eyewitness of the accidental collision, and he lives in West Columbia, which is about forth miles from Orangeburg.
As shown by affidavits submitted by respondent, he has eight material witnesses who live in the County of Orangeburg where the action was brought, and where Hugo S. Sims, Sr., resided all of his life until his accidental death. Three of these witnesses, who reside in the City of Orangeburg, were occupants of the automobile driven by the deceased, and survived the collision. They received critical injuries, and in accordance with their affidavits are still suffering from disabilities incurred in the accident. It is further set out in these affidavits that it would constitute an extreme hardship for them to travel any distance and remain away from home in order to attend a trial in Columbia. Four affidavits from witnesses in Holly Hill, a town within Orangeburg County...
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