Hopkins v. Sun Crest Bottling Co.

89 S.E.2d 755, 228 S.C. 287, 1955 S.C. LEXIS 99

• Court: Supreme Court of South Carolina
• Decided: October 26, 1955
• Docket: 17076
• Status: Published

Opinions

Baker, Chief Justice.

The appellant, a domestic corporation with its principal place of business at Florence, South Carolina, and a resident of said county within the meaning of Section 10-303 of the 1952 Code, has been held subject to the jurisdiction of, and suable in, the Common Pleas Court for Darlington County upon the ground that it owns property and transacts business in Darlington County, from which ruling it has appealed to this Court. The only question that needs to be considered is: does appellant “own property” in Darlington County within the meaning of the proviso of Section 10-421 of the 1952 Code? In our.opinion it clearly does not.

The appellant, a local bottling company, conducts its business in the customary manner known to that trade. Its soft drinks are bottled at its plant in Florence, are placed in light weight open crates, and are sold by its salesmen, residing in Florence, directly to its customers, consisting principally of grocery stores, including stores in Darlington County. The salesmen leave the crates and bottled drinks and collect for same. When opening an account a customer makes a deposit of 50^ for each crate of 24 bottles, and afterwards, when additional sales are made, the customer returns crates and bottles in like amount, or, if additional purchases are made, he makes additional corresponding deposit, or, if his returns are more than his purchases, he is credited for the extra crates and bottles. The crates and bottles are constantly being exchanged, and are making rounds from the appellant’s plant to the customers’ outlet and back again, never having any degree of permanence in the hands of the customer, remaining with the customer on the average for a period of not more than three days. Darlington County does not levy or attempt to collect any property taxes from the appellant.

We seek the legislative intent in providing that a domestic corporation may be sued in any county where it owns property and transacts its business. The clearest statement that can be found, as it bears upon the facts of this case, is in Brown v. Palmetto Baking Co., 220 S. C. 38, 66 S. E. (2d) 417, 420, where we clearly indicated that not all property temporarily in a county was “property” within the proviso of Section 10-421. In that case, Palmetto Baking Company, a domestic baking company, sold its baking products from a truck regularly operated in Williamsburg County, but we held that the truck and its contents, used ■ in making sales and deliveries to retailers in the county, was not sufficient to render the company subject to suit in that county. The following apt observation was made by Mr. Justice Stukes, who authored the opinion:

“ * * * the ownership of property in the county, is not met by ownership of the truck by which respondent’s wares were peddled or delivered from another county. If the contrary were held, ownership of a single vehicle might furnish venue in a number, • or all, of the counties at once, which shows the unsoundness of the appellant’s position thereabout.”

There is as much or more of a degree of permanence in the daily operation of a bakery truck on the streets of a town as there is in leaving bottles and crates with local customers when there is a continuous flow of bottles and crates from the bottler to the customer and back to its plant in an average of three days. Most probably the bakery truck, in a period of a year, would actually be a vastly longer time within any county where it was being used than a crate or bottle of a bottling company. It is unnecessary to go into any refinements of the question of title to the crates and bottles. It was never the intention of the legislature that property so transitory in the county should be considered the ownership of property therein, within the meaning of Section 10-421. The whole purpose of the appellant’s “deposit” arrangement is patently for the speedy rotation of bottles from plant to customer and back to plant and to make their stay in any county, other than where its plant is located, as brief and transitory as possible. There can be no reasonable distinction between using a truck daily on the highways of a county or streets of a town in that county, and leaving different bottles and crates with customers of soft drinks in a town or county for periods up to three days on an average. It is far-fetched to say that a domestic corporation is subject to suit in every county of the state wherein an empty soft drink bottle or crate shall come to rest briefly, pending return to the bottler for reuse.

The case of Gibbes v. National Hospital Service, Inc., 202 S. C. 304, 24 S. E. (2d) 513, relied on by the Circuit Judge, is not controlling here. In that case the order of the lower court, which was adopted as the judgment of this court, held that policies of hospitalization insurance, issued by a domestic insurance corporation, in the possession of policyholders resident in Aiken County, constituted “property” of the corporation in that county for venue purposes. Without conceding the' correctness of that decision, it is sufficient to say that that case is clearly distinguishable, factually, from the case at bar by reason of the permanence of the “property” in Aiken County in the former, as against the transitoriness of the bottles and crates in Darlington County in the instant case.

The cases of Atkinson v. Korn Industries, 1951, 219 S. C. 402, 65 S. E. (2d) 465; Miller v. Boyle Construction Co., 1941, 198 S. C. 166, 17 S. E. (2d) 312, and Hancock v. Southern Cotton Oil Co., 1948, 211 S. C. 432, 45 S. E. (2d) 850, illustrate ownership and maintenance of substantial physical property within the county where domestic corporations were held to be subject to the jurisdiction of'courts of the county wherein such property was located. The different factual situations in those cases serve to illustrate the fallacy of the Circuit Judge’s holding in this case.

For the foregoing reasons, the order of the Circuit Judge, refusing appellant’s motion to transfer this action to Florence County, the residence of appellant, is reversed.

Oxner and Legge, JJ., concur. Stukes and Taylor, JJ., dissent.