10 S.E.2d 333 | S.C. | 1940
Lead Opinion
April 3, 1940. The opinion of the Court was delivered by The appeals which are combined here grow out of the same state of facts and will be heard together. One conclusion will cover both.
The actions grew out of a collision between automobiles. The one driven by Mrs. Lucinda Sams Roof, and the other driven by Edmund E. Tiller. The collision occurred in Richland County and the actions were brought in the County Court of Richland County. On motion of the defendant, predicated on the allegation that he is a resident of Sumter County, the place of trial was moved to Sumter County. Thereupon, on motions of the plaintiffs, Judge Bellinger, then presiding in the Court of Common Pleas for Sumter County, transferred the cases for trial to the County Court of Richland County. The motion of plaintiffs for the transference to the County Court of Richland County was based on the grounds that the convenience of witnesses and the ends of justice would be better served and promoted by trying these cases in Richland County. In support of the motions the plaintiffs offered the affidavit of the plaintiff, Mrs. Lucinda Sams Roof, that she and her daughter Anne Roof were treated in Providence Hospital by Drs. Durham and Brannon, and were attended by numerous nurses and hospital attendants, who are daily employed in the City of Columbia, and that it would be practically impossible for plaintiffs to obtain the benefit of their testimony if they should have to attend Court at Sumter; that it would be equally inconvenient for the named physicians; that the said physicians, by their affidavits, strongly support these allegations. C.C. Howell, Jr., by his affidavit, states that he is notified by plaintiffs' attorney that he is a material witness for plaintiffs *135 in these actions; that he is a resident of West Columbia and could within a few minutes attend the Court in Columbia and return to his employment at the Columbia Mills, but that it would interfere with his work and greatly inconvenience him if he has to go to Sumter to attend the trial and remain until he is called to testify. He knows other mill employees who are regularly employed in the mill and who will be called to testify for plaintiff, upon whom it will work a hardship if they are compelled to attend Court in Sumter County.
The defendant appeals on two exceptions, which he treats in his brief in the form of two questions:
1. Is the showing here sufficient to transfer the case from Sumter County to Richland County?
2. Has the Court of Common Pleas for Sumter County the power to transfer a case to Richland County to be tried in the Richland County Court?
It does not need the citation of authority to show that the motion to transfer the venue of a case on the grounds that "it will serve the convenience of witnesses and promote the ends of justice" is addressed to the sound discretion of the Judge who hears it, and it is equally well-established law that this Court will not reverse the action of the Judge on the ground that he has abused his discretion if there is, in the proof submitted by the movant, competent and relevant evidence to sustain his action.
"It is equally well settled in this state that a motion to change the place of trial upon this statutory ground is addressed to the sound judicial discretion of the circuit judge * * *, which will not be disturbed by the court except in cases of manifest error." Sample v. Bedenbaugh et al.,
"* * * This court will not interfere with the discretion exercised by a circuit judge unless it is convinced that the action of the circuit judge was so opposed to a sound *136
discretion as to amount to a deprivation of the legal rights of the complaining party. * * *" Griffin v. Owens et al.,
In that case an automobile collision occurred in Spartanburg County. The defendant resided in Richland County. Action was brought in Spartanburg County; on motion of the defendant, the venue was changed to Richland County. Motion was made by the plaintiff, before Judge Grimball, to transfer the venue back to Spartanburg County on the grounds of the convenience of witnesses and the promotion of the ends of justice; which motion was granted. In this case the Court said what is above quoted and added the following:
"* * * We are not convinced to this extent in the present case; in fact, in our opinion, the discretion of the trial judge was, not only judiciously, but was wisely, exercised."
"It has been well settled in this State, as elsewhere, that place of residence is a question of fact and depends upon the intention of the party as evidenced by his acts and declarations (Barfield v. [J.L.] Coker [ Co.],
Judge Bellinger, in his order in this case, said:
"* * * It should be stated at the outset that the right to trial in the County where the defendant resides, granted in Section 422, Code 1932, supra, is a substantial right and has been repeatedly held to be such. State v. Columbia Ry.Gas Electric Co.,
"By affidavits and admissions in argument before me it is shown that all witnesses, except the defendant, reside in Richland County and even the defendant lives in Richland County for nine months of the year as a student at the University; * * *. The defendant shows, only, that he is actually a resident of Sumter County, though attending the University; that he is under indictment in Richland County for alleged violation of law, arising out of the collision from which arose these cases, and that such would be prejudicial to his case in Richland County."
Here is the finding by the Circuit Judge that the defendant is a resident of Richland County for nine months of the year, and there is evidence to sustain the finding. It cannot be denied that he was residing in Richland County when the collision occurred and when the actions were brought against him.
We have seen that Section 422 provides that "the action shall be tried in the county in which the defendant resides atthe time of the commencement of the action." (Italics added).
Black's Law Dictionary, 3rd ed., at page 1543, defines residence as follows: "The place where a man makes his home,or where he dwells permanently or for a considerable lengthof time. * * * A distinction is recognized between legal and actual residence. A person may be a legal resident of one place and an actual resident of another." (Italics added.)
So the defendant was an actual resident of Richland County at the time of the commencement of these actions. *138
Appellant asks in his second question: "Has the Court of Common Pleas of Sumter County the power to transfer a case to Richland County to be tried in the Richland County Court?"
Why not? Plaintiffs elected to bring their action in that Court; nothing has been presented by appellant to show that it is not a Court of competent jurisdiction. It is the Court from which the appellant had them removed to Sumter and on the sole ground that the defendant is a resident of Sumter County. We find no merit in the proposition.
We are satisfied that Judge Bellinger soundly and wisely exercised his discretion in the premises.
The exceptions are overruled and the order appealed from is affirmed.
MESSRS. JUSTICES CARTER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE E.H. HENDERSON concur.
Concurrence Opinion
I concur in the result; I do not think it is necessary to an affirmance of Judge Bellinger's order that this Court should hold that a college student, temporarily absent from the county of his legal residence only for that portion of each year during which his college is in session, is a "resident" of the county in which he is a student, in the sense in which the word "resident" is used in Section 422, Code of 1932. But for the power of the Court to change the venue in proper cases, it is my opinion that college and university students should be sued in the counties of their legal residence in the counties where they live with their parents.
Dissenting Opinion
I concurred in the result, only, of the opinion originally filed herein, not then having had access to the opinion inBrice v. State Company,
"The residence of a person is a mixed question of law and fact; and the intention of that person with regard to the matter is deemed the controlling element of decision. * * * That a man does not live or sleep or have his washing done at the place where he has gained a residence, or that his *141
family lives elsewhere, or that he engages in employment elsewhere are facts not necessarily inconsistent with his intention to continue his residence at that place.' Clarke et al.v. McCown et al.,
While it is true, as stated in the order refusing the petition for rehearing, that "the defendant lives in Richland County for nine months of the year as a student at the University" and that he was living there as a student at the time of the commencement of the action, and that Section 422, Code of 1932, requires that "the action shall be tried in the county in which the defendant resides at the time of the commencement of the action," it is most respectfully insisted that there is, as indicated by the language of Clarke v. McCown,supra, an elementary and fundamental difference between "living" in a county and being "resident" of a county — at least for purposes of suit and suffrage. Here, it may be conceded that defendant lived in Richland County for nine months of the year as a student at the University — thoughfor no other purpose, so far as the record discloses — but there is nothing whatever to indicate that he has ever had the slightest intention to become a "legal resident" of Richland County, so that he might vote and/or be sued therein; and certainly "legal residence" is what is contemplated by the use of the word "resides" in Section 422.
An apt illustration of the principle for the preservation of which I make bold to extend myself is to be noted in the fact that our Congressmen "live" in the City of Washington for nine, or more, months of each year, as do many other South *142 Carolinians, who exercise their right of suffrage in, and who are without doubt "residents" and citizens of this commonwealth. Certainly no one would contend that our representatives in the Congress of the United States are "residents" of the District of Columbia merely because they live there for the greater portion of each year; yet, if one becomes a legal resident of Richland County merely because, in pursuit of higher education, he lives there as a student at theUniversity during that portion of the year when classes are held, why do not our Congressmen become legal residents of the District of Columbia because of their living in Washington for a like period of time? If it be said that their intention "with regard to the matter is deemed the controlling element of decision," and that it will be presumed that their intention is to continue as "residents" of South Carolina, to the end that they may hold office therefrom, I respectfully suggest that this Court, in conformity with what is invariably the truth as to a college boy's intention, should not hesitate to presume, in the absence of clear and convincing proof of a contrary intention on his part, that a student's intention is to maintain his "residence" — during his attendance upon college — in that county where he was born and reared, and where he has always lived with his parents, and where the latter have continuously made their legal and physical "residence", and where such student, under the parental roof, makes his place of abode when his college is not in session; usually a week at Thanksgiving, two weeks at Christmas, a week at Easter, and three months during the summer.
And, upon further consideration of the primary question involved in the appeal, and a careful study of the decisions hereinafter referred to, and particularly the opinion in Bricev. State Company, supra, I have reached the conclusion that a rehearing should be granted herein for the following reasons:
(1) There is certainly no little confusion in the minds of many members of the bar, and some members of the trial *143
bench, as to just what showing is necessary to procure a change in the place of trial upon the ground that "the convenience of witnesses and the ends of justice would be promoted by the change," as is authorized by Section 426, Code of 1932 — occasioned by the results reached in the decisions of this Court in Utsey v. Charleston, S. N. Ry. Co.,
I am of the opinion, therefore, that a rehearing should be ordered because, in the opinion heretofore filed, the Court overlooked the facts: (1) That no effort was made on behalf of plaintiff-movant to show that the second requirement of Subdivision three of Section 426, the promotion of the ends of justice, would be effected by changing the place of trial from Sumter County to Richland County — other than her showing as to the first requirement of the statute, the promotion of the convenience of witnesses, and the decision of this Court in Brice v. State Company, supra, holds in effect that a defendant should not be deprived of his fundamental (and statutory) right to a trial in the county of his residence merely for the convenience of witnesses, when the statute makes necessary the establishment by movant of both requirements. If that be not the effect of that decision, then this Court should announce that a defendant will not be deprived of such fundamental right because he has no witness other than himself, for the mere fact, that, he must sustain his defense by his testimony alone is a most compelling reason for preserving his right to trial before a jury of his own vicinage. Any other rule, when a defendanthas no witness except himself, would make it impossible forsuch a defendant ever to have a trial in the county of hisresidence; in passing, it may be noted that the very reasonsgiven in the instant cause to show how inconvenient it wouldbe for plaintiff's witnesses to go to Sumter, and how difficultit would be to get them to attend Court beyond the confinesof Richland County, were almost the identical reasons *149 given on behalf of plaintiff in Brice's case, overruledby this Court in that case, but sustained by it in the case underconsideration now — that a number of such witnesses were physicians and nurses, etc.; (2) that no effort was made by plaintiff-movant to show that defendant was a "resident" of Richland County at the time of the commencement of the action, and Judge Bellinger did not so rule — he did find that he "lives" in Richland County for nine months of the year as a student at the University,"that he is actually a resident of Sumter County, though attending the University," but there is, as hereinbefore asserted, an elementary and fundamental difference between being a "resident" of a county and "living" in a county Contrary to the Circuit Judge's suggestion that he was an actual resident of Sumter County, the opinion originally filed holds that "defendant was an actual resident of Richland County at the time of the commencement of these actions." Certain it is, I most respectfully suggest, that the only reasonable inference to be drawn from the showing made before the Circuit Judge is that, while the University is in session, defendant lives in, and is an actual resident of Richland County, but that theonly "legal residence" he has ever had is Sumter County, where his parents reside, and "legal residence" is surely what is contemplated by Section 422, which requires that "the action shall be tried in the county in which the defendant resides at the time of the commencement of the action," "legal residence" meaning one's residence for the purpose of suit and suffrage; (3) that no effort was made to show that it was, or ever had been, defendant's intention to change the place of his "legal residence" from the Sumter County residence of his parents; and, as indicated in Clarke v. McCown,supra, as well as in the authorities cited in the opinion filed herein, "intention * * * with regard to the matter is deemed the controlling element of decision"; (4) that, in order to give effect to, and to perpetuate inviolate, the fundamental (and statutory) right of a person to a trial *150 in the county of his residence, and in an effort to reconcile the seeming conflict in our decisions, and to lay down a principle that will more nearly preclude inconsistent rulings by trial Judges and apparent conflicting decisions by this Court, it should be held that, in order to deprive a defendantof his right to trial in the county of his residence, thereshould be some positive, affirmative evidence of probativevalue on behalf of plaintiff either that (1) "an impartial trial cannot be had therein," or that (2) "the convenience of witnessesand the ends of justice will be promoted by the change," and, with reference to the latter, there should be no presumption or inference that the ends of justice will be promoted by such change, merely because the evidence showsthat the convenience of the witnesses will be subservedthereby.
Addendum
1. That defendant is not a resident of Richland County but resides in Sumter County. It is sufficient to say that Judge Bellinger, in his order removing the case from Sumter County back to Richland County, based the order principally on the ground that it was for the convenience of witnesses and the promotion of the ends of justice. He did say in his order that "By affidavits and admissions in argument before me, it is shown that all witnesses, except the defendant, reside in Richland County, and even the defendant livesin Richland County for nine months of the year as a student at the University." It cannot be denied that he was living in Richland County as a student at the time of the occurrence which gave rise to this action and at the time of the commencement of the action. Section 422 of the Code provides that the action "shall be tried in the county in whichthe defendant resides at the time of the commencement ofthe action."
2. Petitioner seems to find an irreconcilable condition between the findings of this Court in the present action and its findings in its opinion in the case of Brice v. State Company,
We find no such discrepancy or contradictory matter. We think a careful reading of both opinions will bear out this statement.
The petition for rehearing is dismissed.
MR. CHIEF JUSTICE BONHAM, MESSRS. JUSTICES CARTER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE HENDERSON concur.