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MCKISSICK v. J. F. CLECKLEY & COMPANY11/25/1996
Dr. Janet M. McKissick sued J.F. Cleckley & Company, an asphalt and paving contractor, for damages she sustained in a vehicular accident. An Allendale County jury awarded her ten million dollars. We affirm.
In March 1992, McKissick was accompanying a pregnant patient in an ambulance. The patient, who was in labor, was being transported from Allendale to a hospital in Beaufort for a possible caesarean section. While en route, the ambulance driver, Barbara Smith, drove off the right side of the road to avoid a deer.
The edge of the road had a significant drop off. When Smith attempted to get back onto the highway, she lost
Cleckley appeals numerous trial issues.
I. VENUE
Cleckley first contends the court erred in changing venue from Orangeburg County, where Cleckley resided, to Allendale County, McKissick's residence.
McKissick originally filed her complaint in Allendale County. Cleckley moved to change venue to Orangeburg County under S.C. Code Ann. § 15-7-30 (1976), arguing it did not maintain offices, conduct business, or own property, in Allendale County. The circuit court denied the motion. Cleckley appealed to the South Carolina Supreme Court. While the appeal was pending, McKissick consented to change venue to Orangeburg County.
Thereafter, McKissick moved to change venue to Allendale County under S.C. Code Ann. § 15-7-100 (1976), alleging the convenience of witnesses and the ends of justice would be promoted by the change. The circuit court granted the motion.
Corporations have a statutory right to venue in any county in which they own property and transact business. Thomas & Howard Co. v. Wetterau Inc., 291 S.C. 237, 353 S.E.2d 141 (1987). Where the facts concerning a defendant's residence are uncontradicted, the trial court must, as a matter of law under § 15-7-30, change venue to the county where the defendant resides. Ellis v. Oliver, 307 S.C. 365, 415 S.E.2d 400 (1992); Chestnut v. Reid, 299 S.C. 305, 384 S.E.2d 713 (1989). Either party may then make a motion to change venue under § 15-7-100 based on convenience of the witnesses and the promotion of justice. Id. Section 15-7-100, like other change of venue statutes, is in derogation of, rather than in conflict with, the statutory right of a defendant to the trial of a case in the county in which the defendant resides at the time of the commencement of the action. Johnston v. Belk-McKnight Co. of Newberry. S.C., Inc., 194 S.C. 490, 10 S.E.2d 1 (1940) (construing statutes then in effect as being in derogation of the common law).
Even though the right of a defendant in a civil action to trial in the county of its residence is substantial, the trial judge retains the sound discretion to change the place of trial if both the convenience of witnesses and the ends of justice would be served. Arledge v. Colonial Oil Indus., Inc., 272 S.C. 88, 249 S.E.2d 740 (1978); Skinner v. Santoro, 245 S.C. 35, 138 S.E.2d 645 (1964).
We will not disturb the trial judge's decision on appeal unless we find a manifest abuse of discretion resulting in an error of law. Graham v. Beverly, 235 S.C. 222, 110 S.E.2d 923 (1959). Moreover, the error of law must be so opposed to the trial judge's sound discretion as to amount to a deprivation of the legal rights of the party. O'Shields v. Caldwell, 208 S.C. 245, 37 S.E.2d 665 (1946).
Where a motion for change of venue is predicated on the grounds of convenience of the witnesses and the ends of justice, the trial judge must resolve questions of fact. Shelton v. Southern Kraft Corp., 195 S.C. 81, 10 S.E.2d 341 (1940). Because the facts often vary, no fixed rules can be laid down to
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