Hart v. Queen City Coach Co.

• Decision Date: 14 January 1955
• Docket Number: No. 677,677
• Citation: 85 S.E.2d 319,241 N.C. 389
• Court: North Carolina Supreme Court
• Parties: Mrs. Lillian Ensley HART v. QUEEN CITY COACH COMPANY and Mrs. Robert Emerson Fultz and Dr. Robert Emerson Fultz.

Page 319

85 S.E.2d 319

241 N.C. 389

Mrs. Lillian Ensley HART v. QUEEN CITY COACH COMPANY and Mrs. Robert Emerson Fultz and Dr. Robert Emerson Fultz.

No. 677

Supreme Court of North Carolina.

Jan. 14, 1955

Carpenter & Webb, Charles F. Coira, Jr., Charlotte, for Dr. and Mrs. Fultz, appellants.

Shearon Harris, Charlotte, Walser & Brinkley, Don A. Walser, Lexington, for plaintiff, appellee.

HIGGINS, Justice.

The critical question presented by this appeal is whether the record presents evidence to support the findings of Judge Gwyn that the appealing defendants were nonresidents of North Carolina on January 4, 1954, the date of the accident, and could be brought into court by service on the Commissioner of Motor Vehicles under G.S. § 1-105. If there is supporting evidence, we are bound by the findings. Bigham v. Foor, 201 N.C. 14, 158 S.E. 548.

The briefs in this case on the question of residence are full and have been prepared with much care. We have examined the many cases cited. They arise under many different statutes, each enacted to accomplish a definite purpose. It is to be expected, therefore, that the holdings as to what constitutes residence, domicile, etc., vary according to the purposes of the statutes.

What constitutes nonresidence under G.S. § 1-105 has not been the subject of direct judicial review. The nearest approach is Bigham v. Foor, supra. The broad purpose of the statute is to enable an injured resident of this State to bring back to answer for his tort a nonresident motorist who has inflicted injury while using the State highways and by the time suit can be instiuted would otherwise be beyond this jurisdiction. It is contemplated that a resident of the State would ordinarily have enough of permanence and of fixed abode to keep him here and to permit personal service.

Residence has certainly in contemplation something of choice, of intention to remain permanently, or for a time sufficient to accomplish some undertaking requiring more than a brief period. How does the serviceman fit into this picture? It must be remembered he moves under orders and not from choice. It is not for him to say when or where he goes, or how long he stays when he gets there. Often, the first intimation of reassignment is the delivery of his movement orders. Can it be said he acquires a residence under such circumstances?

The impermanence of a soldier's or sailor's assignment is illustrated by a provision of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. War Appendix, § 574, a wartime measure which provided: '* * * such person shall not be deemed * * * by reason of * * * compliance with military or naval orders * * * to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing * * * and personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, * * *.'

Our view that members of the Armed Services stationed in this State under military or naval orders do not acquire residence here is supported by a recent decision of the Supreme Court of Arkansas, in the case of Central Manufacturers' Mut. Ins. Co. of Van...