McGill v. Miller

• Decision Date: 06 April 1931
• Docket Number: 240,230
• Citation: 37 S.W.2d 689,183 Ark. 585
• Parties: MCGILL v. MILLER
• Court: Arkansas Supreme Court

37 S.W.2d 689

183 Ark. 585

MCGILL v. MILLER

No. 240, 230

Supreme Court of Arkansas

April 6, 1931

Appeal from Lafayette Circuit Court; Dexter Bush, Judge; reversed.

Service quashed and cause dismissed.

Atkins & Stewart, for appellant McGill; Cockrill & Armistead, for appellant Gazette Publishing Co.

King & Whatley and McKay & Smith, for appellee.

SMITH J. HART, C. J., MEHAFFY and BUTLER, JJ., concur in reversal but dissent from judgment of dismissal.

OPINION

SMITH J.

In March, 1930, a cause was tried in the Lafayette Circuit Court, wherein the administrator of the estate of J. W. Miller sought to recover upon a policy of insurance which had been issued to his intestate. The controlling question in the case was the one of fact whether the insured had committed suicide. The insurance company, in support of its plea that the insured had died by his own hand, offered testimony tending to show the involved condition of the insured's affairs as sheriff of the county and his depression on that account. Certain letters were read in evidence which the deceased wrote immediately before his death which were addressed to a woman under the name of Miss Trussell. Portions of these letters are set out in the opinion of this court rendered upon the appeal from the judgment of the trial court in that case. Home Life Ins. Co. v. Miller, 182 Ark. 901, 33 S.W.2d 1102.

In one of these letters addressed to Miss Trussell the writer accused two citizens of the county of dishonest conduct towards him, and he charged his daughter Georgia with lack of concern and sympathy for his distress. These letters were read in evidence at the trial, a report of which was sent to the Arkansas Gazette at Little Rock by S.D. McGill, its local correspondent. In the report of the trial as it appeared in the Gazette, it was recited that Miller, the insured, had charged the two men above referred to and his daughter Georgia with having robbed him. The letters contained no such charge as to his daughter, and the testimony leaves in doubt the question whether the mistake was made by McGill in his report of the trial or by the "rewrite editor" in the Gazette office.

The article containing the false charge that Miller had accused his daughter of robbing him was published in the Gazette on March 26, 1930, and on June 25 thereafter this suit was filed in the Lafayette Circuit Court to recover damages, both compensatory and punitive. The Gazette and McGill, its correspondent, were both made parties defendant to this suit. On July 23, 1930, a news item was published on the first page of the Gazette in which the error in the article of March 26 was pointed out and regret expressed for its publication.

After filing the complaint summons was served on the Gazette in Little Rock, Pulaski County, the county of its domicile, and a return was made by the sheriff of Lafayette County upon the summons to McGill which recited that it had been served "by delivering a true copy of same to Mrs. S.D. McGill at the usual place of abode of the within named S.D. McGill--she being a member of his household and above 16 years of age."

Motions to quash the service were filed by both the Gazette and McGill, the point being raised in each motion that McGill was not a resident of Lafayette County, and, inasmuch as the Gazette had its domicile in Pulaski County, there was no authority to maintain the suit in Lafayette County.

Upon the hearing of these motions McGill testified as follows. He had resided in Lafayette County until the latter part of March, 1930, at which time he removed to Little Rock, where he had since resided and had been living for about three months before the institution of the suit. He had obtained permanent employment in Little Rock, and expected to continue to make that city his home. Prior to his removal to Little Rock he had resided in Lafayette County since 1902, and he served as a member of the jury at the March term of the court. He owned a home in Lafayette County, where his wife still resided, but the home in that county was for sale, and his wife was only living there until the house could be sold. He left Lafayette County with the intention of making Little Rock his permanent home in March, and was living in Little Rock when the copy of the summons was served on his wife in June, and his residence in Little Rock had continued to the time of the trial in August, 1930. McGill further testified in the most unequivocal manner that when he left Lafayette County it was with the intention of becoming a resident of Pulaski County, and that intention had been carried into effect, although his wife and youngest child were still living in Lafayette County and would continue to do so until his home there was sold.

McGill admitted that after his removal from Lafayette County he had paid the taxes assessed against him in that county before his removal, but this, of course, was a proper thing for him to do, even though there had been no question about the change of his residence. He also stated that, if he had been in Lafayette County at the time of the election, he would have voted there, but he was not in that county when the election was held, and he did not vote there, but did vote at the election in Pulaski County. He did not vote for any candidate for county offices, but in that connection stated he had been in the county for only six months.

The court overruled the motions to quash the service, and the case of DuVal v. Johnson, 39 Ark. 182, is relied upon to sustain that ruling. That was a case of substituted service, the summons having been served at the usual place of abode upon the wife of a defendant who had left the State. It was there said that it would be difficult to formulate distinct definitions of "residence" and "usual place of abode," and that one temporarily absent from his residence or usual place of abode might be served by leaving a copy of the summons with some member of his family of sufficient legal age living at the residence or usual place of abode of the resident who was temporarily absent. The facts in that case were that the summons was served in 1856, and a judgment was rendered thereon in 1861, and the proceeding to vacate the judgment was not instituted until 1875. It is recited in the opinion that the judgment defendant went to California in 1854, and had returned in 1857, "without any intention whatever to change his residence." The defendant in that case never questioned the sufficiency of the service, and it was raised by his children after his death.

We are, therefore, of the opinion that the DuVal case, supra, is not controlling here, for the court there stated the fact to be that the defendant left this State without any intention of changing his residence, and service upon a member of his family at his usual place of abode was therefore in conformity with the statute of this State.

Here, however, the facts which we have recited are undisputed, there being no testimony whatever upon this question except that of McGill, and the conclusion to be deduced therefrom is one of law, and we are therefore not bound by the finding of the trial court that the service was sufficient. The sufficiency of testimony to support even the verdict of a jury, where the testimony is undisputed, is a question of law for the court. Catlett v. Ry., 57 Ark. 461, 21 S.W. 1062; Pine Bluff Head Heading Co. v. Bock, 163 Ark. 237, 259 S.W. 408.

The law of this feature of the case is well settled, and is to the following effect. One's usual place of abode, in its ordinary acceptation and in the sense used by the statute, means the place where a person lives or has his home, that is, his fixed permanent home; the place to which he has--whenever he is absent--the intention of returning.

At § 6 of the chapter on Domicile in 9 R. C. L., p. 542, it is said: "The general rule is that domicile is changed from one place to another, or one State to another, only by the abandonment by a person of his first place of domicile with the intention not to return, and by taking up his residence in another place with the intention of permanently residing in that place. In other words, to effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last acquired residence a permanent home; and the acts of the person must correspond with such purpose."

Applying these principles to the undisputed testimony in this case, we are of the opinion that McGill was a resident of Pulaski County, and not of Lafayette County, at the time of the service upon his wife in the latter county, and that such service upon him was therefore insufficient, and, this being true, it necessarily follows that the service upon the Gazette in Pulaski County was insufficient to require it to appear and answer in the Lafayette Circuit Court.

McGill testified that he left Lafayette County three months before the institution of this suit, and that he removed to Pulaski County, where he had obtained permanent employment, with the intention of residing there permanently, and that he was attempting to sell his former home in Lafayette County, and intended to remove his family to Pulaski County as soon as a sale was effected, and in the meantime he had established a place of abode at an address which he stated in Little Rock.

It must be remembered that a man has the absolute and unqualified right to change his place of abode when he pleases, for any reason which prompts him so to do, and that he does change his place of abode when he removes from one place, with the...