Summary
In Willis v. IndustrialLife Health Insurance Co., 192 S.C. 304, 6 S.E.2d 706, 707, the Court said: "In cases of foreign corporations doing business within the State, the same may be sued in any county in the State where such corporation maintains an agent and transacts its business."
Summary of this case from Sanders v. Allis Chalmers Mfg. Co.Opinion
14955
November 1, 1939.
Before GREENE, J., Berkeley, June, 1938. Affirmed.
Action by Dr. H.A. Willis against the Industrial Life Health Insurance Company of Atlanta, Georgia, for slander. From an order denying defendant's motion to change the place of trial from one county to another, defendant appeals.
The order of Judge Greene follows:
This is an action for slander brought by plaintiff against the defendant, a domesticated foreign corporation, in the Court of Common Pleas for Berkeley County. Defendant moves to change the place of trial from Berkeley County to Florence County upon the grounds that the defendant had no property and maintained no agent or office in Berkeley County. The motion was based upon the complaint and a number of affidavits. At the hearing of the motion, which was had before me during the spring term of the Court of Common Pleas for Berkeley County, some testimony was taken and full argument was had. Written arguments were submitted later.
From the affidavits and testimony taken before me I find that, although C.W. Cox, Jr., the admitted agent of defendant, spent week ends with and paid board to his father, C. W. Cox, Sr., in the City of Florence, Florence County, and paid some taxes in that county for the year 1937, he went regularly as such agent to Moncks Corner, Berkeley County, every Sunday afternoon or Monday morning for many months prior to the commencement of this action, stopping at the Dixie Hotel in Moncks Corner, from which place he engaged in writing insurance and collected premiums thereon for the defendant until the following Friday afternoon, when he returned to the City of Florence to spend the week end with his father. It seems to me that the conclusion is inescapable that the defendant at the time mentioned maintained an agent, C.W. Cox, Jr., in Berkeley County for the transaction of its corporate business.
In the case of Power Manufacturing Company v. Saunders, 274 U.S. 940, 47 S.Ct., 678, 71 L.Ed., 1165, it was held that such a foreign corporation should be on a parity with domestic corporations in the matter of the place of trial; and defendant contends that in order to acquire jurisdiction of a domestic corporation it must be shown that said corporation maintains an agent whose legal residence is in the county where the suit is brought. I do not think that this contention can be sustained. In the very recent case of Tucker v. Ingram et al., 187 S.C. 525, 198 S.E., 25, 28, Mr. L.D. Lide, Acting Associate Justice, writing the opinion of our Supreme Court, said:
"There is no doubt of the proposition that a corporation chartered under the laws of this State, that is to say, a domestic corporation, is a resident in any County in the State where it maintains an agent and conducts its corporate business, and suit may be brought against it in any such County. Elms v. Power Company, 78 S.C. 323, 58 S.E., 809; McGrath v. Ins. Co., 74 S.C. 69, 54 S.E., 218; Dennis v. R. Co., 86 S.C. 258, 68 S.E., 465; Patterson v. Orangeburg Fertilizer Co., 120 S.C. 478, 113 S.E., 318."
All of the cases cited by Mr. Justice Lide used almost the identical language used by him as quoted above.
I, therefore, find and hold that the defendant at the time of the commencement of this action maintained an agent in Berkeley County for the transaction or conduct of its corporate business and that suit could be brought against it in that county.
It is, therefore, ordered that the motion to change the place of trial of the above-entitled case from Berkeley County to Florence County, South Carolina, be and the same is hereby refused.
Messrs. McEachin Townsend, for appellant, cite: Venue of foreign corporation: 274 U.S. 490; 47 S.Ct., 678; 187 S.C. 525; 198 S.E., 25; 171 S.C. 273; 172 S.E., 220; 74 S.C. 69; 54 S.E., 218; 78 S.C. 323; 58 S.E., 809; 86 S.C. 258; 68 S.E., 465; 120 S.C. 478; 113 S.E., 318; 124 S.C. 346; 117 S.E., 594; 74 S.C. 69; 54 S.E., 219; 145 S.C. 539; 143 S.E., 269; 173 S.C. 338; 175 S.E., 810; 163 S.C. 33; 161 S.E., 174; 168 S.C. 18; 166 S.E., 626; 1 S.E.2d 900; 161 S.C. 49; 159 S.E., 490; 124 S.C. 346; 117 S.E., 594; 30 A.L.R., 168; 116 S.C. 29; 106 S.E., 778; 98 S.C. 6; 81 S.E., 1102; 87 S.C. 322; 69 S.E., 603.
Messrs. Norval N. Newell and Marion F. Winter, for respondent, cite: Corporation resides where it maintains agent: 187 S.C. 525; 198 S.E., 25; 173 S.C. 338; 175 S.E., 810; 124 S.C. 346; 117 S.E., 594.
November 1, 1939. The opinion of the Court was delivered by
H.A. Willis, a physician of Berkeley County, sued the defendant, Industrial Life Health Insurance Company of Atlanta, Georgia, in an action for slander alleged to have been uttered by an agent of the defendant, one C.W. Cox, Jr., at Moncks Corner, Berkeley County, South Carolina. The defendant appeared specially for the purpose of questioning the jurisdiction of the Court in Berkeley County and made a motion to transfer the cause from that county to the County of Florence on the ground that the defendant does not maintain an agent or transact its business in the County of Berkeley.
The defendant produced numbers of affidavits purporting to show that the agent, Cox, lived with his father in Florence, South Carolina; that he was working out of the Florence, district, partly in Berkeley County and partly in Orangeburg County, and while in Berkeley County had a room at the Dixie Hotel in Moncks Corner from which he conducted the business in said county. The affidavits further show that the said agent, Cox, pays poll tax in Florence County, and is unquestionably a citizen of Florence County. There appears another affidavit on the part of one Harley, the district manager of the Florence district of defendant, who on oath states that the defendant corporation is a domesticated corporation and maintains no resident agent, has no office and owns no property in Berkeley County, the business of said county being transacted through the Florence office.
In opposition to these affidavits the plaintiff called O.L. Knight, the proprietor of the Dixie Hotel at Moncks Corner, who testified that the agent, Cox came in generally on Sunday night and checked out some time during the week, usually Friday or Saturday. W.L. Law, the postmaster at Moncks Corner, testified that the agent Cox, had a box at the post office and sent mail from Moncks Corner.
This is not a case falling under Section 426 of the Code permitting a change of the place of the trial by the Court on the grounds therein stated, a matter largely within the discretion of the trial Judge, but it is a case under Section 422 of the Code which requires a trial in the county of the residence of the defendant. In cases of foreign corporations doing business within the State, the same may be sued in any county in the State where such corporation maintains an agent and transacts its business. Elms v. Southern Power Co., 78 S.C. 323, 58 S.E., 809.
Our sole inquiry, therefore, here is as to whether the defendant maintains an agent and is doing business within the County of Berkeley for this must appear for jurisdiction to be sustained.
Motions of this kind are submitted to the trial Judge for his determination under facts developed by affidavits or other proof and if there are facts to sustain the finding of the trial Judge, the same will not be disturbed by this Court. There were sufficient facts in this case to sustain the findings of the trial Judge and his order is, therefore, affirmed, McGrath v. Piedmont Mutual Insurance Company, 74 S.C. 69, 54 S.E., 218.
The judgment of this Court is that the judgment of the lower Court be affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.