Opinion
16762
August 3, 1953.
Messrs. T.B. Bryant, Jr., of Orangeburg, and J.D. Parler, of St. George, for Plaintiffs-Appellants. Messrs. Rosen, Horger Sims, of Orangeburg, for Defendant-Respondent, cite: As to motion for change of venue being properly granted by Circuit Judge: 190 S.C. 66, 1 S.E.2d 920; 217 S.C. 16, 59 S.E.2d 344; 221 S.C. 334, 70 S.E.2d 346; 38 S.C. 399, 17 S.E. 141; 193 S.C. 132, 10 S.E.2d 333; 223 S.C. 109, 74 S.E.2d 693.
The Order of Judge Brailsford requested to be reported follows:
These four actions were commenced in Dorchester County on or about January 22d 1953. They all arise out of a collision between an automobile driven by the defendant, Truitte W. Westbury, and one driven by George Haigler, who is plaintiff in one of the actions. The collision occurred on Highway No. 178, about four and one-half miles south of the City of Orangeburg, near the home of George Haigler and his family.
At least three of George Haigler's children were occupants of his automobile at the time. One of these was killed and the other two are alleged to have sustained serious personal injuries as a result of the collision. Of the four actions brought against defendant, one involves the claim of George Haigler for property damage and personal injury, one the claim of George Haigler as Administrator of the estate of his deceased son for his alleged wrongful death and the others the claims of the remaining two children for personal injuries.
The defendant, who is a resident of Dorchester County, has moved that the place of trial be changed to Orangeburg County, where the collision occurred, upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change. Section 10-310, sub-section (3), Code of 1952.
It is shown by the record that the scene of the collision was near the City of Orangeburg, at approximately the point where a dirt driveway leads from Highway No. 178 to the home occupied by George Haigler and his family.
The affidavits filed by defendant, in support of the motion, tend to establish the following facts:
There are no eyewitnesses to the collision except the surviving occupants of the two cars, of whom only the defendant resides in Dorchester County.
The defendant expects to call as witnesses in his behalf on the issue of liability, two highway patrolmen who investigated the accident, the operator of an automobile repair business, who removed the two vehicles from the scene and hauled them to his garage, a surveyor who has made a plat of the scene and a photographer who has taken pictures thereof. All of these witnesses reside in the City of Orangeburg and their convenience would be promoted by changing the place of trial.
While a number of other persons from the vicinity visited the scene shortly after the collision, the defendant does not regard them as material witnesses because the matters to which they could testify will be covered by the testimony of the witnesses already referred to.
In addition, the defendant expects to call as witnesses two doctors, who examined the occupants of the Haigler automobile at the Orangeburg Regional Hospital after the collison, and the Superintendent of the Hospital. No reason is advanced as to why the testimony of these witnesses will be material to the defense of the action for wrongful death. On the other hand, the materiality of the doctor's testimony as to the personal injury claims, which aggregate $70,000.00, is apparent. All of these witnesses reside in the City of Orangeburg and their convenience will likewise be promoted by changing the place of trial.
The affidavit of Mr. Charlton B. Horger, of counsel for defendant, sets forth facts from which he believes that Mr. Paul Dean, a well known resident of the City of Orangeburg and on whose farm plaintiffs reside, will be a witness in their behalf. He also states that from his investigation he believes that the Orangeburg County witnesses already referred to are the only material witnesses to the circumstances of the collision.
This affidavit also suggests that it may be in the promotion of justice for the jurors to visit the scene of the collision, which can be more conveniently accomplished from Orangeburg than from Dorchester; and that it would promote the ends of justice for a jury of Orangeburg County, in which all of the plaintiffs and all of the witnesses reside, to pass upon the merits of the cases.
Turning now to affidavits relied upon by plaintiffs in opposition to motion:
The affidavit of Mr. T.B. Bryant, Jr., of counsel for plaintiffs, states that under the peculiar facts of the collision, which are related, the defendant himself is the most material witness on the question of liability. The defendant has made statements to a number of residents of Dorchester County as to how the collision occurred and these persons will be material witnesses. The defendant and the persons to whom he has made such statements are well known in Dorchester County and jurors of that County would be better qualified to pass upon their credibility than would jurors of Orangeburg County.
Further, that it will be unnecessary for either the medical witnesses, the surveyor or the photographer to attend the trial because the plaintiffs will admit in evidence statements as to what the doctors would testify, the hospital records, the plat and photographs.
Although a number of witnesses saw the two vehicles before they were moved from the scene of the collision, plaintiffs will also admit an affidavit of the operator of the wrecker as to their position and condition.
Two affidavits by residents of the Town of St. George, one of whom is Chief of Police, are to the general effect that the defendant recently, in their presence and in the presence of other citizens of the town of St. George, described and related the manner in which the collision in question occurred. Both deponents state that they would be greatly inconvenienced if they should be required to attend court in Orangeburg but could do so without inconvenience in the County of their residence.
The only other affidavit relied upon by plaintiff is that of Mr. J.D. Parler. He states that these cases are on the calendar for trial in Dorchester County and can be tried at the term commencing April 20, 1953. On the other hand, it is deponent's opinion that if the "case" is transferred to Orangeburg County it will be at least a year before "the case" can be disposed of; and that such delay would result in injustice to plaintiff.
The following statement of applicable law is paraphrased from the opinion in Gregory v. Powell, 206 S.C. 261, 33 S.E.2d 629:
To authorize a change of venue under the Code section upon which defendant relies, the burden is upon him to show that both the convenience of the witnesses and the ends of justice will be promoted by the change. If he has made a prima facie showing as to both requirements, the burden shifts to plaintiffs to overcome the showing made as to at least one of them. Such a motion is addressed to the judicial discretion of the lower court and decision thereof will be reversed only in case of manifest legal error.
The first questions to be determined are whether on the entire record the showing made by defendant is legally sufficient to establish both requirements of the Statute. Unless this is the case, there is no room for the exercise of discretion in determining whether the place of trial should be changed.
Defendant's showing clearly preponderates over that of plaintiffs as to the convenience of witnesses. Since defendant is entitled to have his witnesses in court and to prove his case in the regular way, the willingness of plaintiffs to admit what the testimony of some of them would be does not affect the question at issue. It has been suggested that the convenience of the photographer and surveyor should not be considered because they were chosen by defendant, knowing that the venue would be laid in Dorchester County. This argument would be entitled to much weight in a case where the effect of granting the motion would be to deprive a defendant of the Statutory right of trial in his own county against his consent. However, under the circumstances appearing here, I see no reason why the convenience of these witnesses should not be considered as much as that of any others.
The question of the sufficiency of the showing as to the second requirement of the Statute is within the narrow compass of whether the facts justify application of the rule adduced in Utsey v. Charleston, S. N. Ry. Co., 38 S.C. 399, 17 S.E. 141, as that rule has been interpreted and applied by the Supreme Court in numerous subsequent decisions. It was there laid down that the ends of justice are promoted by having a jury from vicinage pass upon the credibility of the witness.
The motion in the Utsey case was made by defendant and it is not clear from the opinion whether or not plaintiff, who presumably was a witness in his own behalf, was a resident of Colleton County, from which the action was transferred.
This rule has been followed in numerous subsequent decisions. Somewhat strangely, the Court has never had occasion to discuss the question of whether its applicability is affected by the residence of a party-witness in the county from which removal is sought; at least, no such discussion has been called or come to my attention. However, the conclusion that the rule is not affected by the residence of a party-witness is implicit in the decision reached in Roof v. Tiller, 195 S.C. 132, 10 S.E.2d 333, 132 A.L.R. 500, and in Stanton v. Sims, S.C. 74 S.E.2d 693. In the case first cited, the motion to transfer the place of trial was made by plaintiffs and was granted despite residence of defendant, who was certainly a material witness in his own behalf, in Sumter County. The same situation obtained in the Stanton case. The order of the lower court rested its conclusion that the second requirement of the Statute had been met squarely on the rule of the Utsey case. This order was adopted as the opinion of the Supreme Court.
It follows that the showing on the part of defendant, which tends to establish that all of the witnesses, except defendant himself, are from Orangeburg County is prima facie sufficient.
The plaintiffs do not attempt to show that there are any other witnesses as to the circumstances of the collision or the nature and extent of their injuries who reside in Dorchester County. They propose, however, to call as witnesses certain residents of Dorchester County to whom defendant has made statements concerning the collision. Since the residence of a party-witness in the county in which an action has been brought does not militate against transfer of the place of trial to the county where the cause of action arose and where all of the other parties and witnesses reside, it would seem illogical to hold that the residence there of persons to whom such party-witness has made statements would do so. Furthermore, no showing whatever is made as to the contents of these statements, except that very shortly before the date set for the hearing of this motion, the defendant related in the presence of the two deponents his version of how the collision occurred. Consequently, it does not affirmatively appear that such statements were inculpatory. Certainly it will not be presumed that at this stage of serious litigation the defendant would make statements concerning its subject matter which vary materially from the testimony which he proposes to give at the trials.
The affidavit of Mr. Parler does not set forth any facts from which it may be inferred that a reasonably prompt trial of these actions cannot be had in Orangeburg County.
I conclude that the prima facie showing on the part of the defendant has not been rebutted by the counter-showing on the part of plaintiffs as to either requirement of the Statute.
While this really disposes of the matter, it may be in order to point out that here there is no necessity of weighing the Statutory right of one party to a trial in his own county (which has often been described as a valuable right) against the right of another to change the place of trial upon a sufficient showing. The party for whose benefit the actions were required to be brought in Dorchester County is seeking their transfer to Orangeburg County. Nothing in the record suggests any way in which trial in Orangeburg County can give defendant an advantage over plaintiffs or infringe upon any right of theirs. Under all of the circumstances, it appears logical and just that defendant's motion should be granted, and
It is, therefore, ordered that the place of trial of the above entitled actions be changed from Dorchester County to Orangeburg County.
Aug. 3, 1953.
The Per Curiam opinion heretofore filed in this case is hereby withdrawn from the files of the Court, and the following substituted therefor.
In this case, we are confronted, as was the Circuit Judge, with a most unusual situation. Neither the plaintiffs-appellants nor the defendant-respondent wants these cases tried in their home county.
Suffice it to say, we have carefully considered, in the light of the record and the exceptions, the order of the Honorable J.M. Brailsford, Jr., resident Judge of the First Judicial Circuit, and find no manifest legal error therein affecting the result or decision on the merits of the motions.
Judge Brailsford in his order refers to residence of a party-witness and says the Court has never had occasion to discuss the question of whether change of venue is affected by residence of a party-witness in the county from which removal is sought, or at least his attention has not been directed to any case thereon. He further says, "However, the conclusion that the rule is not affected by the residence of a party-witness is implicit in the decision reached in Roof v. Tiller, 195 S.C. 132, 10 S.E.2d 333, 132 A.L.R. 500, and in Stanton v. Simms, S.C. 74 S.E.2d 693."
There is a case in which the residence of party-witnesses was one of the deciding factors in reversing the order of the lower Court ordering a change of venue, that case being Reynolds v. Atlantic Coast Line Railroad Co., 217 S.C. 16, 59 S.E.2d 344. In Roof v. Tiller, supra, the decision is predicated largely on the fact the defendant was for nine months out of the year residing in Richland County, and in Stanton v. Sims, supra, the defendant did not submit any affidavits disputing the contents of plaintiff's affidavits in support of the change.
The point is not material herein since defendant-respondent also seeks change of venue.
Let the order appealed from be reported as the judgment of this Court.
BAKER, C.J., and FISHBURNE, STUKES, TAYLOR and OXNER, JJ., concur.