I concurred in the result, only, of the opinion originally filed herein, not then having had access to the opinion inBrice v. State Company, 193 S.C. 137, 7 S.E.2d 850, filed March 22nd. I now repeat, with the utmost deference and respect for the views of the other members of the Court, yet with all the earnestness at my command, that, in a matter *Page 140 of such grave and far-reaching importance as the fundamental right to trial in the county of one's residence, this Court should not go out of its way at this late hour in American jurisprudence to announce the doctrine that a student is a legal resident of the county where he attends an institution of higher learning — so that he may be sued therein — when, during the usual summer vacation, he returns to the home of his parents in another county, where the latter have always resided, and where the family lived together continuously until the son matriculated at college. For myself, I am confirmed in the opinion that, unless the evidenceclearly establishes a contrary intention upon his part, a college student (who lives in the home of his parents in another county when his college is not in session) is a legal "resident" of that county of which his parents are "residents", and wherein they continuously live and make their home; and that such a student must be sued in the latter county, subject only to the power of the Court to change the place of trial agreeable to the provisions of Section 426, Code of 1932, which was done by the presiding Judge in the instant cause primarily because he was of the opinion that "the convenience of witnesses and the ends of justice would be promoted by the change," and, if an affirmance of his judgment thereabout be proper, the same should be predicated upon that ground, without announcing the revolutionary principle that a student, attending school in a county other than that of his parents' legal and physical "residence", ipsofacto becomes a legal "resident" of the county where his school is situated — without regard to any showing of hisintention to make the county of his college the county of his residence.
"The residence of a person is a mixed question of law and fact; and the intention of that person with regard to the matter is deemed the controlling element of decision. * * * That a man does not live or sleep or have his washing done at the place where he has gained a residence, or that his *Page 141 family lives elsewhere, or that he engages in employment elsewhere are facts not necessarily inconsistent with his intention to continue his residence at that place.' Clarke et al.v. McCown et al.,107 S.C. 209, 92 S.E., 479, 480. In the cause under consideration, it is not questioned that defendant, with his parents, had, prior to the former's going away to the University, gained a "legal residence" in Sumter County, and there is nowhere the slightest suggestion of any intention on his part to change that residence to Richland County, and his ambition to gain a University degree is "not inconsistent with his intention to continue his residence at that place" — Sumter County.
While it is true, as stated in the order refusing the petition for rehearing, that "the defendant lives in Richland County for nine months of the year as a student at the University" and that he was living there as a student at the time of the commencement of the action, and that Section 422, Code of 1932, requires that "the action shall be tried in the county in which the defendant resides at the time of the commencement of the action," it is most respectfully insisted that there is, as indicated by the language of Clarke v. McCown,supra, an elementary and fundamental difference between "living" in a county and being "resident" of a county — at least for purposes of suit and suffrage. Here, it may be conceded that defendant lived in Richland County for nine months of the year as a student at the University — thoughfor no other purpose, so far as the record discloses — but there is nothing whatever to indicate that he has ever had the slightest intention to become a "legal resident" of Richland County, so that he might vote and/or be sued therein; and certainly "legal residence" is what is contemplated by the use of the word "resides" in Section 422.
An apt illustration of the principle for the preservation of which I make bold to extend myself is to be noted in the fact that our Congressmen "live" in the City of Washington for nine, or more, months of each year, as do many other South *Page 142 Carolinians, who exercise their right of suffrage in, and who are without doubt "residents" and citizens of this commonwealth. Certainly no one would contend that our representatives in the Congress of the United States are "residents" of the District of Columbia merely because they live there for the greater portion of each year; yet, if one becomes a legal resident of Richland County merely because, in pursuit of higher education, he lives there as a student at theUniversity during that portion of the year when classes are held, why do not our Congressmen become legal residents of the District of Columbia because of their living in Washington for a like period of time? If it be said that their intention "with regard to the matter is deemed the controlling element of decision," and that it will be presumed that their intention is to continue as "residents" of South Carolina, to the end that they may hold office therefrom, I respectfully suggest that this Court, in conformity with what is invariably the truth as to a college boy's intention, should not hesitate to presume, in the absence of clear and convincing proof of a contrary intention on his part, that a student's intention is to maintain his "residence" — during his attendance upon college — in that county where he was born and reared, and where he has always lived with his parents, and where the latter have continuously made their legal and physical "residence", and where such student, under the parental roof, makes his place of abode when his college is not in session; usually a week at Thanksgiving, two weeks at Christmas, a week at Easter, and three months during the summer.
And, upon further consideration of the primary question involved in the appeal, and a careful study of the decisions hereinafter referred to, and particularly the opinion in Bricev. State Company, supra, I have reached the conclusion that a rehearing should be granted herein for the following reasons:
(1) There is certainly no little confusion in the minds of many members of the bar, and some members of the trial *Page 143 bench, as to just what showing is necessary to procure a change in the place of trial upon the ground that "the convenience of witnesses and the ends of justice would be promoted by the change," as is authorized by Section 426, Code of 1932 — occasioned by the results reached in the decisions of this Court in Utsey v. Charleston, S. N. Ry. Co., 38 S.C. 399,17 S.E., 141 (reaffirmed in Patterson v. Charleston W.C. Ry. Co.,190 S.C. 66, 1 S.E.2d 920, which it may be conceded was properly decided so far as theresult is concerned), in Brice v. State Company,193 S.C. 137,7 S.E.2d 850, and in the instant cause; and it is a fact that to many members of the bar, and to some members of the trial bench, there appears to be an irreconcilable conflict between the results obtained in the instant cause and in the Utsey case, on the one side, and the result obtained in the Brice case, on the other side, and, if possible, the law involved should be clarified and settled. In the Utseycase (38 S.C. 399, 17 S.E., 143), the action of the Circuit Judge in granting the motion for a change in the place of trial for promotion of the convenience of witnesses and theends of justice was affirmed upon appeal, although there was no attempt to make any showing that "the ends of justice would be promoted by the change," the Court holding, beyond any peradventure of a doubt, that proof of "promotion of the ends of justice" is established merely by showing that the convenience of the great majority of the witnesses — not all of them, as suggested by that, and other decisions, for plaintiff was undoubtedly a witness for himself in theUtsey case, though perhaps the only one — will be subserved by the change; for there is nothing else whatever in that record to establish promotion of the ends of justice, and the Court, in effect, so holds. In a suggested explanation of that affirmance, it may be said, not improperly, I trust, that the Utsey case was decided at a time in our jurisprudence when, more than now, perhaps, motions of this character were regarded as being largely in the discretion of the trial *Page 144 Judge, who so-called discretion (almost invariably predicated upon his findings of fact, it may be added), was rarely ever disturbed. Certain it is, however, that the Utsey case is subjected to the criticism that the only proof of the promotionof the ends of justice was the admittedly establishedconvenience of the witnesses for the defendant, and to the further objection that it is susceptible of the construction, as appears to be indirectly suggested in the opinions in thePatterson and Brice cases, supra, and by the effect of the decision in the instant cause, that, because a litigant happens to have no witness other than himself who resides in X County, the ends of justice will be promoted by changing the place of trial to Y County, where the more fortunate litigant's witnesses reside. If the litigant residing in X Countybe the defendant, then his fundamental right to a trial inthe county of his residence is destroyed, and destroyed, notby the establishment of both requisites as specified in Section426 of the Code, and reiterated in many decisions ofthis Court — the convenience of witnesses and the ends of justice — but by the establishment of nothing more than theconvenience of the witnesses of that litigant who is fortunateenough to find several witnesses living in another county. Indeed,under such circumstances, a defendant could never successfullyassert his right to a trial in his own county. I cannot subscribe to such a construction of our statutes, or to such a result, and I am fortified in my position by this Court's disposition of the matter in Brice v. State Company,supra, where, it is most deferentially insisted, the showing with respect to the second requisite for the change, promotion of the ends of justice, was much stronger than that in either the Utsey or Patterson cases, supra, though it is conceded that, in the latter, inspection of the railway-highway crossing by the jury was a circumstance (not present in theUtsey case) naturally tending to aid the jury in reaching a just verdict, and thereby tending to promote the ends of justice. However, in the Brice case [193 S.C. 137, 7 S.E. *Page 145 (2), 851], it was established, and admitted by defendant, that plaintiff, upon his motion for a change of the place of trial from Richland to Fairfield, "fulfilled the first requirement of the statute, to wit, the convenience of witnesses." The opinion in that case further shows that the action for personal injuries arose in Fairfield County, and that plaintiffhad fourteen (14) witnesses, all residing and working in that county, among them being two physicians, the sheriff, a deputy sheriff and the chief of police of Winnsboro. While the opinion does not show how many material witnesses fordefendant resided in Richland County, it may be fairly assumed that, inasmuch as the cause of action arose out of an automobile collision in Fairfield County, defendant did not have many material witnesses residing in Richland County, the county of its own residence. Moreover, the Circuit Judgefound as an additional fact that defendant was known in every village and hamlet in the State, whereas plaintiff was probably unknown to Richland County folk. In short, withsome evidence, apparently, to sustain his findings, the trial Judge, found as a fact that both convenience of witnesses and the ends of justice would be promoted by changing the place of trial from Richland to Fairfield. Yet, upon appeal, this Court reversed the judgment, and ordered the cause to trial in the county of defendant's residence, thereby protecting its fundamental right to a trial in such place, holding in effect (and reversing, in effect, the lower Court's findings of fact in a law case) that movant had not offered sufficient evidence (or any evidence, perhaps) to show that the ends of justice would be promoted by the change, although defendant-appellant admitted that movant had done as much as was required in the Utsey case — established that the convenience of witnesses would be promoted by the change, from which fact alone in the Utsey case, it was inferred that the ends of justice would be subserved. I have no quarrel with the correctness of the decision in the Brice case, for I hold firmly to the conviction that a defendant's fundamental right to trial *Page 146 in the county of his residence should be preserved inviolate,except when there is some positive, affirmative showing of probative value on behalf of plaintiff either that (1) "an impartial trial cannot be had therein," or that (2) "the convenience of witnesses and the ends of justice would be promoted by the change" — there should be no presumption, as in the Utsey case, reaffirmed in the Patterson case, that the ends of justice will be promoted merely because the convenience of witnesses will be subserved by the change. Nevertheless, if the Brice case is sound, if the showing there, as to the promotion of the ends of justice, was not sufficient to deprive defendant of its fundamental right to a trial in the county of its residence, then the showing in the instant cause, as to the promotion of the ends of justice, was not sufficient to deprive Tiller of his fundamental right to a trial in the only county where he has ever had a legal residence, Sumter County; for there was nothing — other than the convenience of the plaintiff's witnesses — to show that the ends of justice would be subserved by transferring the cause from Sumter to Richland. Certain it is that the Brice case is in conflict with the Utsey case, as to the quantity and mode of proofnecessary to show that the ends of justice would be promoted by changing the place of trial from one county to another — in the latter, proof of convenience of witnesses was held to prove promotion of the ends of justice, while in the former, proof of promotion of the witnesses' convenience, supplemented by the trial Court's finding that defendant was no stranger in the county to which he sent the cause for trial, was held to be insufficient to establish promotion of the ends of justice — or the instant case is in conflict with the Bricecase, because, in the latter, this Court held that trial should be had in the county of defendant's residence notwithstanding the convenience of the witnesses would be promoted by trial in another county, whereas, in the case under consideration, the majority opinion decrees that the trial shall be had in that county where the convenience of the witnesses *Page 147 will be promoted, notwithstanding defendant is a legal resident of another county, and no effort whatever was made on behalf on movant to show that the ends of justice would be promoted by the change, apart from his showing that such change would subserve the convenience of his witnesses. In other words, in the Utsey case, this Court affirmed the Circuit Court's ruling (made upon defendant's motion for a change in the place of trial) that "the convenience of witnessesand the ends of justice would be promoted by the change," when the only proof of promotion of the ends of justice was the showing as to the convenience of witnesses; in the Brice case, the Circuit Judge (upon plaintiff's motion for a change in the place of trial) made the identical ruling, relying upon the Utsey case, and also upon the later case ofPatterson v. Ry., supra, which had but recently reaffirmed the Utsey case, yet this Court reversed him, holding in effect, and apparently in direct conflict with its pronouncements in the Utsey and Patterson cases, that proof of the promotion of the witnesses' convenience, supplemented by the additionalfact that defendant was well known in the county to whichthe change was ordered, was no proof that "the ends of justice would be promoted by the change." If the decision in theUtsey case be right, then the decision in the Brice case is wrong; and if the decision in the Brice case be sound — and it is my judgment that it is — then the opinion originally filed in the instant case is unsound. With the utmost defense and respect, it may not be amiss to suggest that, perhaps, some of the confusion in the decisions — notably in the Brice andPatterson cases — has been caused by what appears to have been reversals by this Court of findings of fact by the Circuit Court, when there was evidence, though admittedly slight, to support such findings of fact below. For example, in the Patterson case, it was held that plaintiff's affidavit as to certain facts, which would naturally tend to prevent a fair trial although not contradicted in any way by defendant, themovant, was not sufficient to warrant the lower Court's finding *Page 148 of fact "that it would not be in the furtherance of justice to make the change" because his affidavit was not corroboratedby supporting affidavits of others, and the Circuit Judge's finding of fact (that the movant had not satisfied him by the greater weight of the evidence that the ends of justice would be promoted by granting the change asked for) was reversed; and so was the opposite finding of fact by the Circuit Judge in the Brice case.
I am of the opinion, therefore, that a rehearing should be ordered because, in the opinion heretofore filed, the Court overlooked the facts: (1) That no effort was made on behalf of plaintiff-movant to show that the second requirement of Subdivision three of Section 426, the promotion of the ends of justice, would be effected by changing the place of trial from Sumter County to Richland County — other than her showing as to the first requirement of the statute, the promotion of the convenience of witnesses, and the decision of this Court in Brice v. State Company, supra, holds in effect that a defendant should not be deprived of his fundamental (and statutory) right to a trial in the county of his residence merely for the convenience of witnesses, when the statute makes necessary the establishment by movant of both requirements. If that be not the effect of that decision, then this Court should announce that a defendant will not be deprived of such fundamental right because he has no witness other than himself, for the mere fact, that, he must sustain his defense by his testimony alone is a most compelling reason for preserving his right to trial before a jury of his own vicinage. Any other rule, when a defendanthas no witness except himself, would make it impossible forsuch a defendant ever to have a trial in the county of hisresidence; in passing, it may be noted that the very reasonsgiven in the instant cause to show how inconvenient it wouldbe for plaintiff's witnesses to go to Sumter, and how difficultit would be to get them to attend Court beyond the confinesof Richland County, were almost the identical reasons *Page 149 given on behalf of plaintiff in Brice's case, overruledby this Court in that case, but sustained by it in the case underconsideration now — that a number of such witnesses were physicians and nurses, etc.; (2) that no effort was made by plaintiff-movant to show that defendant was a "resident" of Richland County at the time of the commencement of the action, and Judge Bellinger did not so rule — he did find that he "lives" in Richland County for nine months of the year as a student at the University,"that he is actually a resident of Sumter County, though attending the University," but there is, as hereinbefore asserted, an elementary and fundamental difference between being a "resident" of a county and "living" in a county Contrary to the Circuit Judge's suggestion that he was an actual resident of Sumter County, the opinion originally filed holds that "defendant was an actual resident of Richland County at the time of the commencement of these actions." Certain it is, I most respectfully suggest, that the only reasonable inference to be drawn from the showing made before the Circuit Judge is that, while the University is in session, defendant lives in, and is an actual resident of Richland County, but that theonly "legal residence" he has ever had is Sumter County, where his parents reside, and "legal residence" is surely what is contemplated by Section 422, which requires that "the action shall be tried in the county in which the defendant resides at the time of the commencement of the action," "legal residence" meaning one's residence for the purpose of suit and suffrage; (3) that no effort was made to show that it was, or ever had been, defendant's intention to change the place of his "legal residence" from the Sumter County residence of his parents; and, as indicated in Clarke v. McCown,supra, as well as in the authorities cited in the opinion filed herein, "intention * * * with regard to the matter is deemed the controlling element of decision"; (4) that, in order to give effect to, and to perpetuate inviolate, the fundamental (and statutory) right of a person to a trial *Page 150 in the county of his residence, and in an effort to reconcile the seeming conflict in our decisions, and to lay down a principle that will more nearly preclude inconsistent rulings by trial Judges and apparent conflicting decisions by this Court, it should be held that, in order to deprive a defendantof his right to trial in the county of his residence, thereshould be some positive, affirmative evidence of probativevalue on behalf of plaintiff either that (1) "an impartial trial cannot be had therein," or that (2) "the convenience of witnessesand the ends of justice will be promoted by the change," and, with reference to the latter, there should be no presumption or inference that the ends of justice will be promoted by such change, merely because the evidence showsthat the convenience of the witnesses will be subservedthereby.