Witherspoon v. Spotts & Co.
| Decision Date | 17 May 1955 |
| Docket Number | No. 17004,17004 |
| Court | South Carolina Supreme Court |
| Parties | Wally WITHERSPOON, Adm'r, Appellant, v. SPOTTS AND COMPANY, Sharpe Construction Company and Donald Hunter, Respondents. |
James Hugh McFaddin, Manning, for appellant.
Shuler & Harrell, Kingstree, John G. Dinkins, Manning Williams & Parler, Lancaster, for respondents.
This appeal arises out of an action brought in the Court of Common Pleas for Clarendon County by appellant for the wrongful death of one Bertha Witherspoon.
The defendants by their separate answers plead generally to the complaint and the case was docketed for trial at the March, 1954, Term of said Court. Upon call of the calendar for said term of Court March 2, 1954, motion for a change of venue was made by the defendant Donald Hunter, upon the grounds of the convenience of witnesses and that the Sharpe Construction Company is a sham and immaterial defendant. After considering the pleadings and affidavits submitted, the case was ordered transferred from Clarendon County to Lancaster County. The pertinent portions of said Order are:
'This matter comes before me on motion of the defendant, Donald Hunter, for a change of venue from the County of Clarendon to the County of Lancaster upon two grounds, to wit: Subsection (1) and Subsection (3) of Section 10-310 of the Code of Laws of South Carolina for the year 1952. * * *
'It is undisputed that the defendant, Donald Hunter, is a resident of Lancaster, South Carolina, and I am satisfied from the facts presented that Donald Hunter is the real Defendant and that Sharpe Construction Company, the Clarendon County resident defendant, is an immaterial defendant, and I so find and hold.'
Plaintiff appeals contending:
The first question must be resolved against the contention of appellant upon authority of the recent case of Brown v. Palmetto Baking Co., 220 S.C. 38, 66 S.E.2d 417, 419, wherein it is held that answer in an action does not constitute a waiver of the right to move to transfer a case to the proper county for trial, stating:
Nixon & Danforth v. Piedmont Mutual Insurance Co., 74 S.C. 438, 54 S.E. 657. See also Willoughby v. Northeastern R. Co., 46 S.C. 317, 24 S.E. 308; Hunter v. D. W. Alderman & Sons Co., 79 S.C. 555, 61 S.E. 202; Rosamond v. Lucas-Kidd Motor Co., Inc., 182 S.C. 331, 189 S.E. 641.
The second question must also be resolved against appellant's contention under authority of Brown v. Palmetto Baking Co., supra, wherein this Court stated in dealing with a similar matter:
'The court made relevant factual findings which are practically undisputed on appeal, and, supported by the evidence, they are binding anyway.' And cites Morris v. Peoples Baking Co., 191 S.C. 501, 5 S.E.2d 286, 287, wherein this Court said:
The affidavit of Donald Hunter is to the effect that on April 9, 1953, the date of the collision, the Sharpe Construction Company and its crew and equipment were approximately three miles from the scene of the collision and that the work of the Sharpe Construction Company required no materials from or the use of the barrow pit on State Highway 527; and that the driver of the defendant's truck, one Leslie C. Kersey, was not its employee but was employed by and controlled exclusively by Donald Hunter.
The affidavit of C. A. Sharpe, secretary and treasurer of the defendant Sharpe Construction Company, states that prior to the date of the collision, Spotts and Company made and entered into a written contract with the defendant Donald Hunter and M. C. Steele; said contract being dated April 1, 1953, provided for the hauling of earth and other materials by Hunter and Steele and that this contract superseded the previous oral contract which was in effect up to April 1. That Sharpe Construction Company had no occasion to use the barrow pit on Highway 527 or haul materials therefrom; that the Sharpe Construction Company neither owned, rented, had any interest in, or control over the truck involved in the collision and that the driver of said truck was the employee solely of Donald Hunter; that at the time of the collision the Sharpe Construction Company was engaged in sub-grading road No. 47, approximately three miles away.
To like effect is the affidavit of Vernor F. Epting, superintendent of Spotts and Company.
We are therefore unable to say that the finding of the circuit Judge that the defendant Donald Hunter is the real defendant and the Sharpe Construction Company an immaterial one is wholly unsupported by the evidence or manifestly influenced or controlled by error of law.
For the foregoing reasons, we are of the opinion that the exceptions should be dismissed and the Order appealed from affirmed, and It Is So Ordered.
...
To continue reading
Request your trial
-
McMillan v. B. L. Montague Co.
...198 S.C. 146, 17 S.E.2d 37; Wood et al. v. Lea, 219 S.C. 409, 65 S.E.2d 669; Moody v. Burns et al., supra; and Witherspoon v. Spotts & Company et al., 227 S.C. 209, 87 S.E.2d 477; Seegars v. WIS-TV (Broadcasting Company of the South) et al., 236 S.C. 355, 114 S.E.2d 502. Where the issue of ......
-
Simmons v. Cohen, 17050
...Cola Bottling Co. of Columbia, 224 S.C. 437, 79 S.E.2d 710; Morris v. Peoples Baking Co., 191 S.C. 501, 5 S.E.2d 286; Witherspoon v. Spotts & Co., S.C., 87 S.E.2d 477. According to the record now before us, the truck of appellant, which was headed south, was stopped in the southbound lane o......
-
Landvest Associates v. Owens, 21159
...State does not constitute such a waiver. Brown v. Palmetto Baking Co., 220 S.C. 38, 66 S.E.2d 417 (1951); Witherspoon v. Spotts and Company, 227 S.C. 209, 87 S.E.2d 477 (1955). And where a defendant expressly reserved his right to move for a change of venue when filing an answer and counter......
-
Lee v. Neal
...having answered generally before moving to change the venue has waived his right to do so. In the case of Witherspoon v. Spotts & Co., 227 S.C. 209, 87 S.E.2d 477, 478, an action for death was brought in Clarendon County against one Hunter, a resident of Lancaster County, and Sharpe Constru......