(dissenting).
I concur in so much of the opinion of Mr. Justice Taylor as holds that the motion for change of venue was timely made, it having been noticed before the term at which the case was for trial; but I respectfully dissent from affirmance of the holding that Sharpe Construction Company was an immaterial defendant, which was the ground upon which the venue was changed. Upon this issue I think that the plaintiff at least “balanced the evidence,” which is the test laid down by the pertinent decisions. Adams v. Fripp, 108 S. C. 234, 94 S. E. 109. Rosamond v. Lucas-Kidd Motor Co., 183.S. C. 544, 191 S. E. 516. White v. Nichols, 190 S. C. 45, 1 S. E. (2d) 916. Dunbar v. Evins, 198 S. C. 146, 17 S. E. (2d) 37. Moody v. Burns, 222 S. C. 258, 72 S. E. (2d) 189. Warren v. Padgett, 225 S. C. 447, 82 S. E. (2d) 810.
The rule was stated in Wood v. Lea, 219 S. C. 409, 65 S. E. (2d) 669, 671, as follows: “The right of a defendant in a civil action to a trial in the county of his residence * * * is a substantial right; and when it is sought to defeat such right by the joinder of another defendant which would permit venue to be laid in the county where the action is brought, upon the raising of the issue of venue, a plaintiff must establish, not by merely a scintilla of evidence, but by at least a balance of the evidence, that he has a valid cause of action against such joined defendant, * *
The vital question in Peters v. Double Cola Bottling Company of Columbia, 224 S. C. 437, 79 S. E. (2d) 710, 713, in which change of venue was refused, was said to be, “Was the defendant Raymond Kizer made a party to this suit merely for the purpose of placing venue in Dorchester County, or is he a bona fide and material defendant against whom a cause of action has been stated in the complaint?”
*215Undoubtedly a cause of action against Sharpe Construction Company is stated in the complaint here. The action is for damages for the alleged wrongful death of plaintiff’s intestate which resulted from the collision on April 9, 1953, of the automobile in which she was riding and a dump truck engaged in highway construction.
The construction contract was awarded to Spotts and Company whose general superintendent made affidavit that Spotts sub-contracted a portion of the work to Sharpe Construction Company which orally sub-contracted the hauling of earth and other material under its subcontract to Donald Hunter and M. C. Steele of Lancaster; and, quoting, “on April 1, 1953, Spotts and Company entered into a written contract with the said Donald Hunter and M. C. Steele whereby that portion of Spotts and Company’s principal contract relating to the hauling of earth and other material was subcontracted to Hunter and Steele; that the said written contract superseded and took the place of the oral agreement between Sharpe Construction Company and Donald Hunter and M. C. Steele made prior to April 1, 1953; and that following the execution of said written contract, Donald Hunter and M. C. Steele did a portion of the work on such projects as the subcontractor of Spotts and Company.”
Affidavit by Mr. Sharpe, secretary-treasurer of Sharjpe Construction Company, also referred to a written contract of April 1, which, quoting from the affidavit, “takes the place of the oral agreement between Sharpe Construction Company, Donald Hunter and M. C. Steele made prior to April 1st * * * ”
The alleged written contract, of date nine days before the accident in suit, was not produced. '
The specifications of the contract with the Highway Department provided that a subcontractor thereunder will be considered an agent of the principal contractor. An agent is, of course, liable for his or its tort, although the principal is *216also liable. They may be joined as defendants and sued in the county of residence of the agent.
Affidavit in behalf of plaintiff established that at the scene of the accident was a sign: “Road Under Construction, Sharpe Construction Company, Inc., Turbeville, S. C.” And Mr. Sharpe and his foreman were at the scene of the accident and at the pit from which earth was being hauled. There is a further consideration,- which is that Spotts, the owner of Spotts and Company, appears to be an officer and director of Sharpe Construction Company, Inc.
As said at the outset, I think the foregoing balanced respondents’ factual showing in support of their contention that Sharpe Construction Company is a sham and immaterial defendant. I would therefore reverse the order under appeal.
The additional ground of the convenience of the witnesses and the ends of justice was not passed upon by the lower court and is not before us.