Opinion
19791
March 19, 1974.
J. Reese Daniel, Esq., of Columbia, for Appellant, cites: As to the Court's not changing venue from the County of Defendant's residence when the Plaintiff has previously agreed that such county is the proper venue and has consented to a previous Court Order removing it there: 114 S.C. 164, 103 S.E. 564; 48 S.C. 350, 26 S.E. 655; 189 Cal.App.2d 49, 10 Cal.Rptr. 787, 85 A.L.R.2d 989; 14 S.C. 324; 197 S.C. 125, 14 S.E.2d 632. As to an abuse of discretion amounting to manifest error of law to change venue for the convenience of witnesses and promotion of justice when the moving party has presented no substantiating evidence and only opinions in support of the motion: Sec. 10-310 (3) Code of Laws of S.C. 1962; 245 S.C. 478, 141 S.E.2d 339; 158 S.C. 496, 155 S.E. 828; 245 S.C. 44, 138 S.E.2d 639; 240 S.C. 140, 124 S.E.2d 912; 248 S.C. 125, 149 S.E.2d 136; 221 S.C. 450, 71 S.E.2d 12; 224 S.C. 281, 78 S.E.2d 890; 217 S.C. 16, 59 S.E.2d 344. As to an abuse of discretion amounting to manifest error of law to change venue for convenience of witnesses and promotion of ends of justice when the only evidence before the Court is that convenience would not be materially promoted and the ends of justice would be defeated by such change: 244 S.C. 282, 136 S.E.2d 711.
Walter W. Brooks, Esq., of Columbia, for Respondent, cites: As to the change of venue from Kershaw County to Richland County being clearly within the sound discretion of the Trial Judge: 244 S.C. 282, 136 S.E.2d 711; 221 S.C. 450; Section 10-310(3) of the Code of Laws of South Carolina; 248 S.C. 433, 150 S.E.2d 612; 238 S.C. 512, 121 S.E.2d 13; 248 S.C. 443, 150 S.E.2d 612; 238 S.C. 512, 121 S.E.2d 13; 240 S.C. 140, 124 S.E.2d 912; 189 Cal.App.2d 49, 10 Cal.Rptr. 787, A.L.R.2d 989; 248 S.C. 433, 150 S.E.2d 612; 244 S.C. 282. As to the change of venue being for the convenience of the witnesses: 228 S.C. 481, 90 S.E.2d 685; 92 C.J.S., Venue, Section 145. Page 862; 22 N.W. 218, 221 Minn. 349; 92 C.J.S., Venue, Section 145, page 858; 216 S.C. 396, 58 S.E.2d 338; 190 S.C. 66. As to the change of venue being also for the promotion of the ends of justice: 38 S.C. 399, 17 S.E. 141; 236 S.C. 299, 114 S.E.2d 97; 235 S.C. 222, 110 S.E.2d 923; 235 S.C. 147, 110 S.E.2d 165; 92 C.J.S. Venue, Sec. 144 p. 855; 247 S.C. 509, 148 S.E.2d 372.
March 19, 1974.
The instant appeal is from an order changing venue from Kershaw County, the residence of the defendant-appellant, to Richland County on the asserted ground that both the convenience of the witnesses and the ends of justice would be promoted by such change, in accordance with the provision of Section 10-310(3) of the Code. The case arises out of an automobile collision which occurred in Richland County on the 6th day of March, 1972, in which plaintiff-respondent alleges she suffered property damage, mental anguish, bruises and contusions.
The principles of law which control the disposition of this appeal were recently, and concisely, set forth in Mixson v. Agricultural Helicopters, Inc., 260 S.C. 532, 197 S.E.2d 663, in the following language:
"We have on numerous occasions pointed out that a movant under the above section has the burden of making a prima facie showing that both the convenience of the witnesses and the ends of justice will be promoted by the change; and upon such showing, the burden shifts to the party resisting the motion to overcome it as to at least one of these requirements. An application for a change of venue upon such grounds is addressed to the sound discretion of the judge who hears it, and his decision will not be disturbed except upon a clear showing of abuse of discretion amounting to a manifest error of law. Miller v. Miller, 248 S.C. 125, 149 S.E.2d 336; Bouvy v. N.W. White Company, 254 S.C. 164, 174 S.E.2d 347.
"It is essential to the support of a motion for a change of venue, based upon the present grounds, to establish by competent evidence the existence of both conditions; and the movant cannot rely merely on the beliefs, opinions, and conclusions of the witnesses. Sample v. Bedenbaugh, 158 S.C. 496, 155 S.E. 838; Adams v. Fripp, 108 S.C. 234, 94 S.E. 109."
In the instant case the movant relied on three affidavits: one from a doctor, who presumably attended the plaintiff for her bruises and contusions; one from a 40 year old man; and one from a five year old child, each of whom deposed that he was a witness in this "action." Each affiant asserted that he was a resident of the County of Richland and his belief that the ends of justice would be met by trial of the action in Richland County. Just where in Richland County these affiants respectively reside is not disclosed by the respective affidavits and neither of them asserts any inconvenience resulting from attending a trial in Camden rather than in Columbia. For aught the record shows to the contrary, all affiants may well live as close to the Kershaw Courthouse as they do to the Richland Courthouse. None of the affidavits discloses either the nature or the materiality of the testimony of the respective affiants.
We think it manifest that the movant has failed to make a prima facie showing as to either of the requisite conditions. There is no factual showing whatever that the convenience of the witnesses would be promoted by the change and the showing as to promotion of the ends of justice was nothing more than the mere beliefs, opinions, or conclusions of the persons alleging themselves to be witnesses.
The movant having failed to make the requisite, prima facie showing it follows that there was manifest error of law on the part of the lower court in granting the change of venue. The judgment below is, accordingly,
Reversed.
MOSS, C.J., and LEWIS, BRAILSFORD and LITTLEJOHN, JJ., concur.