*1 91 сonclude, there- here. We and the under consideration policy fore, fails to the case within bring that the first cause of action the policy coverage.
The second and third causes allega- of action both contain that tions the appellant and knowingly willfully misrepresented the condition of the In the cаse of machinery question. Bank, General Insurance Co. America v. Palmetto 355, 233 S. E. held that an insurer Court was not its obligated against to defend lawsuit insured for insured’s damages аllegedly resulting from the intentional dis- traint on a lessee. The property allegation of intent pre- cluded that neither damage was nor intended expected case, the insured.1 As in the Palmetto Bank the policy involved here defines “occurrence” so that is limited to coverage injury or damage which is “neither intended expected nor from the Therefore, of the find standpoint insured.” we the holding of Bank, Palmetto supra, with to the controlling respect second and third causеs of action.
As the Federal has complaint not alleged facts to bring cause within the policy’s we coverage, hold that respondent is, was therefore, under no It duty to defend. unnecessary to decide whether the Honduras company’s claim specifically excluded other terms policy or whether respondent was excused from defending lawsuit by appellant’s alleged breach of policy provisions notice regarding and the forward- suit ing of papers.
Affirmed. TURNER, Nanсy Respondent, G. CARRIERS, v. SANTEE CEMENT INC., Appellant.
(282 (2d) 858) S. E. 1 Compare, Boggs Surety Co., Casualty v. Aetna (1979), holding negligent E. location of a an occurrence. on a lot would constitute housе *2 Grimball, Cabaniss, Guerard, Charleston, ir Vaughan for appellant. III, Auburn Bridge, Randolph Walterboro and Murdaugh, J. Hampton, respondent.
September 1981.
Gregory, Justice: Carriers, Inc. Cement), appeals (Santee from an Hampton County order of venue from denying in a case. We reverse. personal injury G. Turner when
Respondent Nancy injured a truck ownеd Santee Cement and its agent driven collided with her 64 near Highway automobile on South Carolina in At the time of the accident Walterboro Colleton Mrs. Turner of the аccident. vicinity lived the immediate She has since moved to Columbia.
Mrs. Turner was hospitalized Charleston *3 Counties and by was treated physicians in Walterboro Charleston.
Two summons and been in complaints have filed this action. The first complaint was filed in There the trial granted Mrs. Turner a judge voluntary nonsuit without At that time had prejudice. neither party any witnesses who resided in Hаmpton County.
Following nonsuit Mrs. Turner’s attorney, a member of Bar, County the Colleton associated a Hampton County law firm. A Hampton County physician examined Mrs. Turner trial оf purposes testimony. The second complaint, which is the of this subject appeal, was then filed in Hampton County.
Pursuant to Section Code Laws South 15-7-100(3), of of Carolina Santee Cement change moved to the venue from County the grounds on convenience of witnesses and the ends justice of pro- would be moted by changе.
At Santee Cement the hearing, presented eleven affidavits. to call one witness lives proposes who in Smoaks; Hill; York; one from four from Brooklyn, Holly New Charlеston; and from Walterboro. Following two from two testimony, the trial presentation judge of affidavits and denied the motion.
A of is addressed change motion for venue to the sound trial whose will ruling discretion of the not be judge, appears unless it manifest error legal disturbed Electric v. Black River Cooperative, Durant committed. Inc., Miller, 466, Miller v. 248 S. E. 264 (1978); C. The 125, 149 248 S. C. E. burden (1966). proof S. of both the is on the who must show convenience moving party, would be promoted by of witnesses and the ends v. Corp. Guardian U. S. Fid. Fid. and of venue. Co., 595, 225 S. Guаr. E. (2d) (1976). determining portion The convenience of the standard in Atlantic Reynolds in v. Coast Line R. test has been set forth al., et 59 S. E. (2d) (1950): “It is how much their convenience not would questiоn whether it would be promoted. be but so promoted thereby, party residing There is no witness or Darlington County, record, convenience, according pro- whose to would be case at or by Darlington, moted trial of the who would be at inconvenienced its trial Florence.” bar, In the at there is only residing case one witness Hampton County whose convenience would be served trial That the case at witness is a saw Hampton. physician who Turner At her Mrs. only deposition, Mrs. once. Turner said particular she went to see that doctor because he would to the trial at Hampton. close
The other be in only persons they who claim *4 the trial if is held in rather convenienced Colleton thаn sister, Mrs. Hampton are Turner and her of both whom However, a in Columbia. the sister will not be witness live her affidavit has in the consequently no value determina Guardian Fid. U. S. v. Fid. and Corр. of issue. Guar. tion Co., supra. that State Turner’s affidavit travel on Highway
Mrs. numerous towns and communities winding through would highway the interstate than travel on stops involve fewer statement under the as her own reality flies in of as well face it is Turner admitted more at her There Mrs. deposition. oath to Waiter- travel from Columbia convenient to interstаte from Columbia to highway than travel on the state boro to Hampton. affiiants, presented for three none the others
Except these of be by Mrs. Turner witnesses wоuld inconven- contends the County. ienced a trial in Colleton contrast,
In affiants contend all of Santee Cement’s trial they aby would inconvenienced the clеarly meets convenience County. of The the ends portion the test. becomes whether question a promoted by of would be transfer ends of justice
It
that the
long
has
been established
the
are
the
of
witnesses
by having
credibility
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Utsey Charles
the
passed
by jurors
vicinage,
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399,
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ton
N. R.
Respondent not brief with this Court.1 Her failure to do so this allows Court to take such action as it upоn appeal deems This failure proper. reversal; however, alone would it justify simply we consider as an ground. additional
Reversed and remanded. J., Lewis, C. Littlejohn Harwell, JJ., and and concur. Ness, J., dissents.
Ness, (dissenting): Justice I dissent. The Cement, Santee show- appellant, has made no aof manifest error ing of law the trial court in by denying motion for of venue as is for reversal required Inc., Durant v. this Court. Black River Electric Cooperative, 248 S. E. (1978). The burden of proving convenience of witnesses and the еnds of justice would be met changing venue in this case is upon the appellant. Guardian Fidelity Corp. v. U. S. Fidelity & Guaranty 225 S. E. (1976). The trial court held failed to meet appellant burden.
The majority’s conclusion that respondent “has failed to slow venue should why not be is changed” directly opposite of requisite standard and thus not may be considered in the determination of this appeal.
I would hold the decision was discretionary with the trial judge affirm.
Affirmed. 8(9) Supreme See Rules and 29 of the Rules of Practice Court of South Carolina.