Summary
In Tucker v. Ingram, 187 S.C. 525, 198 S.E. 25 (1938), the Court stated the long settled principle that a "domestic corporation is a resident in any county in the State where it maintains an agent and conducts business, and suit may be brought against it in any such county."
Summary of this case from Stewart v. Ben Arnold Co., Inc.Opinion
14723
July 14, 1938.
Before BELLINGER, J., Richland, February, 1938. Affirmed.
Actions by M.B. Tucker against C.C. Ingram and the Pure Oil Company of the Carolinas, and by M.B. Tucker against the Pure Oil Company of the Carolinas. From orders denying motions to transfer the cases to another county, defendants appeal.
The order of Judge Bellinger follows:
This matter came on to be heard before me on February 10, 1938, at chambers, on motion of the defendants to change venue to Sumter County, based upon the convenience of witnesses and upon the further ground that the corporate defendant being a non-resident of the State of South Carolina, the suit should be removed to the county in which the resident defendant, C.C. Ingram, resides, to wit: Sumter County.
It is alleged in the complaint and admitted in argument by the attorneys for the defendants, that the corporate defendant, Pure Oil Company of the Carolinas, is doing business in Richland County, with offices and agents in said county. Defendants contend that because it is a foreign corporation, the local defendant is entitled to have the case removed to the county of his residence, citing and relying upon the cases of Barfield v. Southern Cotton Oil Company, 87 S.C. 322, 69 S.E., 603, City of Sumter v. U.S. F. G. Company et al., 116 S.C. 29, 106 S.E., 778, and Halsey v. Minnesota-S.C. Land Timber Company, 168 S.C. 18, 166 S.E., 626.
In the case of Barfield v. Southern Cotton Oil Company, 87 S.C. 322, 69 S.E., 603, the Court held that (quoting syllabus): "An action against a foreign corporation and a resident of this State, in which the venue is laid in a county other than that of the resident, should, on his motion, be transferred to the county of his residence for trial."
The facts set out in the reported case are very meager. In Hayes v. Seaboard Air Line Railway, 98 S.C. 6, 81 S.E., 1102, in an opinion by an undivided Court, which Mr. Justice Hydrick who wrote the opinion in the Barfield case concurred in, it was said: "In that case, however, it was not made to appear that either of the defendants was a resident of Lexington County, from which the case was transferred to Richland County, where both defendants resided."
And in Campbell v. Mutual Benefit Health Accident Association, 161 S.C. 49, 159 S.E., 490, 491, the Court said further with reference to the Barfield case: "In the Barfield case, it was plainly stated that one of the defendants was a foreign corporation, but nothing was said in the opinion there about the foreign corporation being domesticated. Nothing was said about its domestication in the later case of Hayes v. Railway. From what was said by this Court in the Hayes case of the Barfield decision, it is evident that if the foreign corporation had established a residence in the county in which the suit was brought by having an office and agent in such county for the transaction of business, the result of the decision of the Court would have been otherwise."
Counsel for the defendants rely strongly upon the case of City of Sumter v. U.S.F. G. Company et al., 116 S.C. 29, 106 S.E., 778. The reported facts in that case are far from clear, and though the case has been cited twice, once in Halsey v. Minnesota-S.C. Land Timber Company, 168 S.C. 18, 166 S.E., 626, and again in Hodge v. Sovereign Camp, 134 S.C. 343, 132 S.E., 822, in each instance the Court merely stated that the facts in the case under consideration were so entirely different that the decision was not controlling. In any event, if the City of Sumter case had any bearing on the issue here, it would appear to have been overruled by the case of Campbell v. Mutual Benefit Health Accident Association, cited supra, in which the rule governing matters of this kind is fully set out.
Counsel for defendants also contend that the case of Halsey v. Minnesota-S.C. Land Timber Company, 168 S.C. 18, 166 S.E., 626, has some bearing on the point at issue here. With that view I am not prepared to agree. In that case, suit was brought in Charleston County against the timber company and one Montague, a resident of Charleston. After the case had been tried once and appealed to the Supreme Court and sent back for a new trial, Montague died. The timber company then moved to have the venue changed to Dorchester County, where it had offices and agents, it having none in Charleston County. The Court held that the venue was fixed "at the time of the commencement of the action" (page 627) and that Montague having died, the cause of action had merely abated as to him, and the case was properly triable in Charleston County, despite the fact that the timber company was not doing business in that county. There was no finding in that case that the plaintiffs had not originally had a cause of action against Montague, but merely that it had abated by reason of his death. Moreover, that suit was brought in the county where the resident defendant lived, so that the facts entirely differentiate it from the case at bar, where suit is brought in Richland County where the corporate defendant is doing business, and in a county other than that in which Ingram resides.
From the pleadings and admissions of counsel, it appears that this case is practically on all fours with that of Campbell v. Mutual Benefit Health Accident Association, 161 S.C. 49, 159 S.E., 490, cited supra. There, action was brought in Richland County against the Mutual Benefit Health and Accident Association and a resident of Greenville County. The defendants sought to remove the case to Greenville County, though it appeared that the insurance company had an office and an agent in Richland, and the Court in refusing to change the venue, laid down the following rule as controlling in all matters of this kind: "If a foreign corporation, whether or not domesticated, having an agent and office for the transaction of business in a particular county, is sued in that county with a resident of another county of the state, the case may be properly tried in the county in which the action is brought. If the foreign corporation is sued in a county where it has no agent or place of business, along with a codefendant who is resident of another county of the state, the place of trial should be changed to the county of the residence of the codefendant."
The motion of the defendants, therefore, on the ground that the corporate defendant is a non-resident and that the defendant Ingram is a resident of Sumter County, must be refused.
As to the additional ground that to remove the case to Sumter County will be for the convenience of witnesses, Section 426 of the Code of 1932 states that the Court may change the place of trial "When the convenience of witnesses and the ends of justice will be promoted by the change." The defendants' motion is made on the sole ground that it will be for the convenience of witnesses for the case to be tried in Sumter County. Numerous decisions of our Court have held that the convenience of witnesses and the promotion of justice will not warrant a change of venue unless both appear together. Sample v. Bedenbaugh, 158 S.C. 496, 155 S.E., 828, Utsey v. R. Co., 38 S.C. 399, 17 S.E., 141, and Castles v. Lancaster County, 74 S.C. 512, 55 S.E., 115.
In the late case of Dennis v. McKnight, 161 S.C. 213, 159 S.E., 557, the Court in discussing this question said (page 558): "In the case of Castles v. Lancaster County, 74 S.C. 512, 55 S.E., 115, it was held that the meaning of the statute in coupling the `convenience of witnesses' and `the ends of justice' together as a single ground for change of venue, was to authorize a change on this ground only when both the `convenience of witnesses' and `the ends of justice' would be promoted. It follows that the ground stated in the notice of the motion, `that justice will be promoted by such change,' cannot be considered, as it omits the accompanying element of convenience of witnesses."
The motion of the defendants, therefore, on the ground that it will be for the convenience of witnesses for the case to be tried in Sumter County, must also be refused.
It is therefore ordered that the motion of the defendants herein to change the place of trial from Richland to Sumter County be, and it is hereby refused.
Messrs. W.F. Wimberly, George D. Levy and Shepard K. Nash, for appellants, cite: Residence of foreign and domestic corporations differentiated: 110 S.C. 290; 98 S.C. 6; 47 S.C. 387; 87 S.C. 322; 116 S.C. 29; 106 S.E., 778; 161 S.C. 49; 159 S.E., 490; 168 S.C. 18; 166 S.E., 628.
Messrs. Tompkins Tompkins, for respondent, cite: Trial of action in county where defendant resides: 168 S.C. 22. As to change of venue for convenience of witnesses: 158 S.C. 496; 155 S.E., 828; 38 S.C. 399; 17 S.E., 141; 74 S.C. 513; 55 S.E. 115; 161 S.C. 213; 159 S.E., 555. Abuse of discretion must be shown: 113 S.C. 112; 101 S.E., 640; 158 S.C. 496; 155 S.E., 828; 168 S.C. 139; 167 S.E., 164.
July 14, 1938. The opinion of the Court was delivered by
These two cases were for convenience submitted on the printed briefs together, and will be so considered and decided by us. The defendant Pure Oil Company of the Carolinas is a North Carolina corporation, but has offices and agents in Richland County, in this State, and transacts its corporate business in that county and also in Sumter County. Both suits were brought in Richland County by the plaintiff, M.B. Tucker, the one first above stated (hereinafter called the first case) being against the defendant, C.C. Ingram, a resident of Sumter County, and the company. The second case above stated (hereinafter called the second case) is against the company alone.
The defendants in the first case moved before Hon. G. Duncan Bellinger, Circuit Judge, for an order transferring the case from Richland County to Sumter County on the ground that the corporate defendant is a non-resident foreign corporation and the individual defendant is a resident of Sumter County, and upon the further ground that it will be for the convenience of witnesses for the case to be tried in Sumter County. A like motion was made in the second case, but of course on the second ground alone.
Both motions were denied by Judge Bellinger on February 18, 1938, and these appeals are from his orders.
The order of Judge Bellinger in the first case was very carefully and thoroughly prepared by him, and contains a review of practically all the pertinent authorities; and the same should be reported. His order in the second case merely makes reference to his order in the first one. We are entirely satisfied with the reasoning and conclusions of Judge Bellinger, and might well content ourselves with merely affirming his orders for the reasons therein stated; but it may not be amiss to add the following observations.
There are only two issues involved, and they are stated by the appellants as follows:
Issue I. Was the trial Judge in error in refusing to change the place of trial to Sumter County, where it appears that the personal defendant is a resident of Sumter County and the corporate defendant a non-resident of South Carolina?
II. Should the trial Judge have transferred these two cases to Sumter County for trial upon the ground of convenience of witnesses; and the promotion of the ends of justice?
As to the first issue: While formerly there was indeed some confusion in the decisions, we think the law has been settled against the view of the appellants by the sound and correct decision in the case of Campbell v. Mutual Benefit Health Accident Association, 161 S.C. 49, 159 S.E., 490, cited by Judge Bellinger, where the Court says (page 491): "If a foreign corporation, whether or not domesticated, having an agent and office for the transaction of business in a particular county, is sued in that county with a resident of another county of the state, the case may be properly tried in the county in which the action was brought. If the foreign corporation is sued in a county where it has no agent or place of business, along with a codefendant who is resident of another county of the state, the place of trial should be changed to the county of the residence of the codefendant. We have no statute (Mr. Justice Cothran's opinion in Bass v. American Prod. Exp. Imp. Corp., 124 S.C. 346, 117 S.E., 594, 30 A.L.R. 168), stating plainly our conclusions. We have gathered them from the decisions of this Court on the subject, particularly including those to which we have referred."
The later decision of Halsey v. Minnesota-South Carolina Land Timber Company, 168 S.C. 18, 166 S.E., 626, is so clearly distinguishable from the Campbell case, for the reasons stated by Judge Bellinger, that we do not deem it necessary to give it any special consideration.
Section 422, Code, 1932, provides with reference to such an action as those involved in these appeals that the same may be tried in any county in which one or more of the defendants resides at the time of the commencement of the action. And, as the Campbell case definitely shows, a foreign corporation establishes a residence for venue purposes by having an office and agent in the county for the transaction of business notwithstanding a foreign corporation is ordinarily deemed a non-resident of the State. The contention of the appellants that the line of old cases so holding may be distinguished because in those cases the corporation had been domesticated is not tenable, as this particular point was specially considered in the Campbell case, and the Court held, after reviewing the authorities, that domestication was irrelevant.
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 Co., 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. The status of these corporations is adverted to by way of analogy; and in this connection it may be of interest to note the decision of the Supreme Court of the United States in the case of Power Manufacturing Company v. Saunders, 274 U.S. 490, 47 S.Ct., 678, 71 L.Ed., 1165, in which it was held, construing an Arkansas statute, that a foreign corporation is unconstitutionally deprived of the equal protection of the laws by statutes permitting it to be sued in any county in the State (when it has established its right to do business in the State), whether it does business, or is present, or has a representative in the county of suit or not, while suits against domestic corporations and individuals can be brought only in counties where they are found, or do business, or have a representative. This question is manifestly not involved in the cases at bar, but it will be observed that the United States Supreme Court in the case cited held that the foreign corporations mentioned should be on a parity with domestic corporations in the matter of the place of trial.
On the second issue involved relating to the convenience of witnesses, the language of Section 426, Code, 1932, seems itself to be conclusive against the contention of the appellants, for the pertinent portion of the section reads as follows, to wit: "When the convenience of witnesses and the ends of justice would be promoted by the change." The use of the word "and" in this section clearly indicates that there must be both the convenience of witnesses and the promotion of justice; and it has been so held in a number of cases, among them being Sample v. Bendenbaugh, 158 S.C. 496, 155 S.E., 828, where the Court says (page 830):
"It is not sufficient to show that the mere convenience of the witnesses will be promoted by the change or the ends of justice will be thereby promoted, but the Circuit Judge should be controlled in the exercise of his judicial discretion by the plain words of the statute, and both requirements of the same must be met. Utsey v. Railway Company, 38 S.C. [399] 405, 17 S.E., 141. * * *
"It is equally well settled in this state that a motion to change the place of trial upon this statutory ground is addressed to the sound judicial discretion of the Circuit Judge (40 Cyc. 136, Gower v. Thomson, 6 S.C. 313; Barfield v. Coker, supra, [ 73 S.C. 181, 53 S.E., 170]; Adams et al. v. Fripp, supra, [ 108 S.C. 234, 94 S.E., 109]; Panama, etc., Co. v. Savings Bank, 115 S.C. 290, 105 S.E., 444), which will not be disturbed by the Court except in cases of manifest error."
It will be observed from this excerpt that even where the motion is based upon both requirements of the statute, the matter is addressed to the sound discretion of the Circuit Judge; and notwithstanding the suggestion of the appellants in their arguments to the contrary, we do not find anything whatever in the record even remotely tending to show any abuse of discretion or manifest error on the part of the trial Judge.
The orders of the Circuit Court in both of these cases are affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER, and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.