*1 was testimony relevancy question to show that could not have seen defend plaintiff ant’s automobile when she started to make her turn from 301 into because defendant’s automo Highway bile was then out of view the alleged depression Yet, there roadway. was no to show how far testimony from the intersection the was located so as to depression determine how defendant’s car could have been visible long after other that the leaving depression, than depression 300 feet of the intersection. was somewhere within about from to show that a car would view disappear Simply intersection, within 300 feet of an without depression view, at it would into would what showing point reappear be of doubtful to the whether aid jury deciding plaintiff she should have seen defendant’s vehicle when started to make the turn.
The absence of a more location of the precise depression with reference failure to the intersection and the to show the facts and circumstances observations surrounding of the witnesses at time sustain the another discretionary exclusion of the testimony. proffered conclusion
Our on the evi- admissibility foregoing dence renders a consideration of the additional sustaining unnecessary. ground
Affirmed.
Moss, JJ., Bussey C. J., Littlejohn, Ness, concur. Associate Justice, Acting HOFMANN, THOMPSON, Appellant Respondent, v. Carol Dorothy M. (2d) 461) (210 S. E. *2 Johnson, Aiken, Williams, John H. Esq., Williams & Appellant, for Blatt, Pales,
Messrs. A. Bed- Rodney Peeples, Peeples, ingfield Loadholt, Barnwell, & and Ronald L. Motley, Esq., of Greenwood, Respondent, *3 December 1974.
Brailsford, Justice:
This is an action for alienation of affection brought M. Dorothy Hof Thompson, respondent, Carol against mann, the is a appellant. resident of New appellant served was under Section Jersey, 10.2-806(1) (c), reenacted in the so-called statute1 which long-arm for out-of-state service on non-residents in provides speci cases, fied including (c), which 10.2-803(1) pro vides : *4 A court exercise over may personal jurisdiction a
“(1) who acts or as to of by a directly cause person agent from action arising person’s of commission a tortious act in whole or in
“(c) part State;” in this 1 10.2-809, through 1973); 10.2-801 1962 of (Supp. Sections Code Laws 1065, reenacted, 1343, (1966), Act No. 54 Stat. 4027 Act. No. 57 Stat. large (1972). part
2518 This is the Uniform Interstate and Interna- tional Act. Procedure
318 court’s
The defendant to challenge appeared specially contends that the section vio- jurisdiction. She above-quoted State, III, lates Article 17 of the of this Section Constitution which act resolution that “every having provides force of shall law shall relate to but one and that subject, the sec- the title.” She also contends that if expressed valid, tion as reenacted in is declared it cannot affect the service of in this an im- case without process having effect. from retrospective The defendant permissibly appeals the lower court’s order the service valid. holding enacted in
The was originally statute long-arm Uniform Com floor amendment to the South Carolina Reme Code, “Further mercial in Article and placed styled dies.” chal successfully A number of out-of-state defendants its under Article Section lenged constitutionality above, in courts of this State and quoted trial this, Federal courts.2 In to the General reaction fol reenacted under the the long-arm provisions title: lowing
No. 1343 of 2 of 1065 of Part 8 Article Act to “An reenact as to so to the Uniform relating relates to Part 8 which certain defi- of make the provisions nitions, based relation- jurisdiction upon enduring personal conduct, based upon provision jurisdiction ship, personal and to state that other bases for outside the State unaffected, to establish a manner shall be jurisdiction service, make establish individuals to eligible proof service, to be served and to establish individuals to provide shall remain unaffected.” that other provisions the 1972 Act relates The contention appellant’s be- two violation subjects cause it to reenact of the Uniform Commer- part purports cial and out-of-state Code yet provide Act, unconstitutionality respondent concedes of the 1966 here making unnecessary. a decision this Court
319 in to commercial trans- certain actions not germane actions. In too contention be cases
This cannot sustained. mention, has declared numerous to this Court in will be terms that every strongest presumption enact in of a favor dulged constitutionality legislative ment, when its only which will declared unconstitutional no room for rea so as to leave invalidity clearly appears sonable 6 doubt as to its conflict with the Constitution. Law, West’s South Carolina Constitutional Key Digest, a It is also axiomatic that stat 48(l)-(8) (1974 Supp.). will, ute if be construed in manner conforming possible, to constitutional limitations. Ibid. 1972, Part
Act No. 1343 of while to reenact purporting 8 of 2 Article of Act 1065 of 1966 (Uniform is a remedial of substantial benefit. Code), statute complete is Its terms relate to but one which homogeneous in in But its title more detail than is expressed required. for the reference therein to the Act there (UCC), would be no semblance of a for an Sec- ground tion 17 to its This reference adds constitutionality. challenge If to the substantive nothing provisions legislation. to sustain its do not necessary which we constitutionality, concede, the references Act to the reenactment of Part Article 2 of should be the 1966 Act disregarded This in it- would leave the statute surplusage. complete enacted, and effect as that self meaning and of identical than frustrat- will rather effectuating legislative thereby short, constitutional to the 1972 In challenge it. ing sufficient substaiffceto justify relates form and lacks as unconstitutional. it down our striking if is that even second argument appellant’s valid, it cannot sustain service reenactment her, because the cause of action sued on of process However, the to the reenactment. prior arose upon holds from other authority jurisdictions weight great statutes here, similar to long-arm that involved as dis statutes, from tinguished consent” such “implied as that Baldwin, involved Johnson v. 214 S. C. 53 S. E. (2d) actions (1949), commenced after apply *6 of the statute passage of when the regardless cause of ac Annot., tion may have arisen. 19 A. L. R. Sec. (3d) p. 62 Am. (1968); Process, Sec. 80 (2d), Jur. rule, This which we (1972). to this adopt, applicable case.
Affirmed. JJ., concur.
Lewis Bussey, Moss, J.,C. J., Littlejohn, dissent.
Moss, Chief : (dissenting) Justice I am not in accord with the in this majority opinion case and feel to dissent. compelled M.
Dorothy herein, the Thompson, respondent instituted this action Hofmann, Carol against herein, appellant sustained damages her a allegedly result of the alien- by ation of the affections of her husband by It appellant. from the appears that the is a complaint resident appellant and citizen of the State of New Jersey.
The service of the Summons and was made Complaint under Code Section upon (c), appellant 10.2-806(1) which as follows: provides When the law of this authorizes out-
“(1) State service State, service, side this when calculated to reasonably notice, actual be made: give may form of mail by addressed to the “(c) any to be person served and requiring signed receipt;”.
Section 10.2-804 that when the exercise of provides per- sonal section, is authorized this jurisdiction by service may be made outside the State.
The claims of the respondent jurisdiction under appellant Section which 10.2-803(1) (c) provides: A court exercise “(1) may over a personal jurisdiction who acts or person directly as to by a cause agent action from the arising person’s in tortious act in commission of a whole
(c) part State;”. this
The the commission respondent by appellant alleged acts, State, of certain tortious this part, resulting the alienation of affections husband. The re- of her contends spondent the court has under the statute” appellant “long-arm provisions Code, South Carolina Uniform Sections 10.2- 10.2-809, through as re-enacted ap- Stats, 2, 1972, proved at 2518. page June 10- specially, pursuant appellant appeared and moved to quash purported her the action for lack of jurisdiction. and to dismiss *7 upon asserts vio- She that Section specifically 10.2-803(1) (c) Article Constitution of lates State, this which or resolution “every act provides having the force of law shall relate to one and that subject, but title”, because service shall expressed proced- ure refers to commercial transactions and permitted tort not to actions unrelated thereto.
The motion to dismiss was heard the Honorable B. by J. Ness, who held his order by presiding judge, and denied valid motion. Due notice of in- appellant’s tention to was appeal given. en- South Uniform Commercial Code was Carolina Stats, 5, 1966, into law on at
acted May page 10.10-103; codified now 10.1-101 and Sections through under the official title: following
“An Act Code, “To be known Uniform as the Commercial Relat- Certain Commercial Transactions ing regarding Personal and Contracts and other Documents con- Property them, Sales, Bank Commercial
cerning including Paper, Transfers, Collections, Credit, and Letters of Bulk Deposits Warehouse Bills of other Documents of Receipts, Lading, Title, Securities, Transactions, Investment and in- Secured Accounts, certain Sales of and Con- cluding Chattel Paper, tract Parties for Public Notice to Third Rights; Providing Procedure, Circumstances; Certain Evidence Regulating and in Certain such Damages Court Actions Involving Transactions, Documents; Contracts or to Make Uniform the Law Thereto; Inconsistent Respect Repealing Legislation.” claims for
The title of the makes no mention tort A Uni- the South Carolina personal injuries. comparison Code, form with the “Uniform Commercial American Code” states drafted by adopted by many Law Institute Conference of Commission- and the National Laws, ers on Uniform State shows that Sections 10.2-801 listed of our which are under the through 10.2-809 Remedies”, not in the “Further do official heading appear Uniform These sections which Commercial Code. permit the South to exercise Carolina Courts personal over in connection nonresident defendants with certain tort claims, and the method of service of were providing process, added our General and no notice thereof by Assembly, was the Act. This evil that the given very framers of our were Constitution to avoid attempting Section 17 thereof. was
Admittedly, General attempting *8 the Uniform adopt nationally Commercial Code recognized to commercial transactions. However relating the General a version thereof which included Assembly passed provi- sions for and service in tort personal injury claims, Section with no indication in (c), the 10.2-803(1) Act that thereof procedural provisions em- brace outside the state a tort action service when the sued divorced from a commercial tort upon completely transaction. Court of this State has not occasion had Supreme
to consider the of Section 10.2-803 constitutionality (1) (c) to a applied tort claim unrelated to a personal injury commercial transaction. In the cases of Tention v. Southern Co., C., D. Ry. 336 F. and McGee Holan v. Supp. Pacific Division Co., C., Ohio Brass D. 337 F. Supp. of Honorable Robert F. Federal District Chapman, Judge, that, held under Article Section our Uniform Com mercial in personam Code to our courts granting jurisdic claims, tion of nonresident defendants connection tort transactions, unrelated to commercial was invalid. In cases, Tention McGee and refers to two Judge Chapman decisions held state trial of which it each was judges that Section 10.2-803 of violates the (1) requirements (c) In of the Constitution of this State. each of cases these the trial dismissed the judge the Summons and in a tort action when the tort Complaint sued was divorced from trans upon completely a commercial action. Nash,
One of the state cases was that of deLoach v. Rhodes, the Honorable William L. was the trial judge. Jr. In the out-of-state service of a dismissing Summons in a tort action which Complaint was unrelated to a com- transaction, mercial he said:
“There is not the inference in the Title Act slightest embrace 1065 that its service outside procedural provisions state in a tort action where tort sued is com- upon transaction, from a divorced commercial contract or pletely word document. is a one. Admittedly, ‘procedure’ broad 1065, however, The Title to Act limits the expressly pro- cedure to ‘court actions such trans- contemplated involving actions, contracts documents.’ That the term ‘such trans- since refers to commercial transactions is actions’ obvious are men- the commerial transactions transactions title. . . .” tioned Melton,
In case the other lower court v. Byrd Judge Francis his order much B. Nicholson after patterned
324
in deLoach and held that the word “procedure” Com- term “such transactions” the title of the Uniform trans- mercial Code were in reference to commercial actions and not indicative of clearly procedural provisions service outside the based on the commission state embracing of a tort of real South Carolina. owning property Code was ap- Commercial
The South Carolina Uniform with the 5, 1966, and was Act Number May proved The General title thereof as hereinbefore quoted. Intro- a Background decided to include in the preamble which, in follows: duction is as part, Commercial “The basic on which the Uniform premise is a single transaction’ Code is based that a ‘commercial facets, law, involv- many its notwithstanding * * * the sale of and ing goods. payment of these all “The basic of the Code is to bring objective modernize clarify, under one statute and to simplify, phases is to and make uniform this The arrangement law. physical * ** treat articles. these various under eight separate phases “* * * affords opportu- time the Code For the first rules are written whereby coverage nity integrated many between the aspects interrelation regard transactions.” of commercial re- cases above of unconstitutionality The rulings reenact Part 8 Arti- ferred to prompted legislature embracing Code cle of the Uniform Commercial Act No. reenactment was by The 10.2-803(1) (c). Stats, thereof being: at page 2 Of Act 8 Of Article “An To Reenact Part So To The Uniform Of Relating 8, Which Relates To Of Part As To Make The Provisions En- Definitions, Based Upon Personal Certain Jurisdiction Based Personal Con- Upon Relationship, during Jurisdiction And To Outside State duct, For Service Provision Unaffected, Be Shall Of That Bases Other State Jurisdiction To Establish A Manner And Service, Proof Of To Estab- lish Service, Individuals To Make Eligible To Establish Individuals To Be And Served To Provide That Other Provisions Shall Remain Unaffected.”
The reenacted Statute contained a as follows: preamble “Whereas, 2 Part of Article of Act 1065 of 1966 was added to the act the by amendment from floor its during debate and in the General and the amend- Assembly passage ment reflected in was not the title of has the act and been held in the circuit courts of the State be to invalid because the amendment did not the meet of Section 17 requirements of III Article of the of Constitution this State which states act or resolution force of ‘Every the law shall relate having to one but and that shall be title’; in the subject expressed and
“Whereas, in order to make the of Part 8 of provisions valid, Article the members of the General be- Assembly lieve that of Part 8 Article 2 as reenacted herein shall cure
any constitutional and after invalidity that of this passage act no constitutional shall attach to the question provisions thereof.”
There can be no doubt but that the General Assembly intended to cure constitutional of Section any invalidity of 1065. The for decision Act No. 10.2-803(1) question (c) is whether Act 1343 is of Article violative Constitution, and, not, if it constitu- 17 of the did cure the defect in Act No. 1065. tional Accident
In case of Colonial & Ins. Co. v. S. C. Life Commission, Tax E. S. C. S. we (2d) of stated that the Section 17 of our purpose is: Constitution General
“to from misled into prevent being of bills not indicated in passage containing provisions titles, their and to of the apprise people subject pro- thus and them be posed legislation give to heard opportunity if desire. so while it is to be construed they Accordingly, so not to embarrass or obstruct great liberality needed of construction not be should legislation, liberality extended to such a as to foster the abuses which its point provisions are designed prevent.”
We further said: be true, course, need not
“It is that the title of act contents, that the constitutional index of its complete sub- satisfied states the where general mandate are of the act body germane and the ject provisions means, thereto methods instrumentalities and provide the accomplishment general purpose.” not that This section the Constitution requires contain one but subject, title to an act must single general relate also that the act provisions body one thereto. In v. Douglass germane single *11 116, Watson, 34, E. from 25 186 S. C. 195 S. quoting 848, R. C. L. at we said: page of should kindred in “The the the act be body topics with nature and have and natural association legitimate title, of the and if the act it- the of the provisions subject be construed as the title self cannot embraced within fairly act, the then it is conflict the of with constitution.” of Section 17 the Within Article the of meaning one Constitution, more than sub act shall contain that no as matter or is the the of an act ject, regarded “subject” act, or chief the the of the thing thing forming groundwork which it deals. Crouch or to which matter it relates Benet, 185, 320. The General v. C. 17 S. E. (2d) 198 S. 1065, the in Act No. Uniform Assembly, sub transactions” are a single that “commercial declared for the the act would afford first of the law and that ject time, of regarding many aspects coverage integrated transactions. commercial is set forth in the one respondent’s complaint
The action of affections of her husband for the alienation tort Fennell v. 240 S. C. appellant. Littlejohn, S. E. 408. The admits that such action respondent (2d) is not one that a commercial involves transaction.
It is to that me Section 803 of Part “Further apparent Remedies”, 2, “Sales”, under Article of the Uniform Com- mercial Code was an of 1.3 Section Uniform adoption Interstate Procedure Act. 24 L. R. A. 554. (3d)
It is the position of that Act No. respondent which reenacted 10.2-803, con- cured effectively any stitutional found in No. invalidity 1065. It further contended that Act established method a procedural which allows a South Carolina court exercise personal a nonresident defendant in connection with a tort claim even it does not relate though to a commercial I transaction. do not agree. Section, reenacted is not 10.2-803(1) (c), germane
to a transaction, commercial nor did the tortious conduct arise from appellant commercial transaction any involve in any transactions, way contracts, or documents contemplated Uniform Commercial Code. The cited section is effective so it has a long legitimate natural transaction, with a association commercial which was the However, act. this section original could not conduct tortious which was applied wholly unrelated transaction, to a commercial because such would application have no natural association with single general subject embraced the title and therefore would be violative of Section 17 Constitution. Assuming *12 -1343 the title to Act effectively changed No. 1065 nonresidents in jurisdiction include tort actions un- transactions, the related to commercial title to act then two and this would be subjects, would contain violative of Section 17 Constitution. intended to If the General enact a general statute, have been it would appropriate do so long-arm act from the an Uniform Commercial separate apart Code under which would appropriate any obviate to whether such violated Article question of the Constitution.
The of the lower court that the judgment holding appel- lant was to the courts of this State, reversed, should my and this case re- opinion, manded thereto for an order appropriate dismissing service of purported process.
Littlejohn, concurs. J., STATE, CAMPBELL, Appellant Respondent, v. Willie
(210 (2d) 307) S. E.