Snyder v. Pitts

Decision Date27 June 1951
Docket NumberNo. A-3046,A-3046
Citation150 Tex. 407,241 S.W.2d 136
PartiesSNYDER et al. v. PITTS, Chief Justice et al.
CourtTexas Supreme Court

King Fike, Dalhart, Storey, Storey & Donaghey, Vernon, John D. Aikin, Mel R. Aikin and James W. Witherspoon, Hereford, J. H. Hart, Austin, for petitioners.

F. H. Richards, Dalhart, for respondent Earl Johnson.

WILSON, Justice.

The question here is whether a defendant has established a second residence apart from his domicile within the meaning of the first sentence of art. 1995, R.C.S., Vernon's Ann.Civ.St. art. 1995. It arises in a suit involving a contract with a defense of accord and satisfaction. Both the trial court and the Court of Civil Appeals (with dissent) held that a second residence had been established and overruled the plea of privilege. The defendants in the trial court (relators here) contend there is 'no evidence' to support the trial court's judgment. See the opinion of the Court of Civil Appeals as reported in Snyder v. Johnson, 237 S.W.2d 741, for a detailed statement of the facts. The parties will be referred to as in the trial court.

Briefly, defendant Cecil Snyder was domiciled at Vernon in Wilbarger County where he had a permanent home with homestead exemption from taxes in which his wife lived and where he voted, paid his taxes, did his banking, and registered his automobile. He and a partner (his co-defendant), whose residence is not in issue here constructed approximately twenty-five houses and other buildings as a business in Dallam, Sherman and Hartley Counties, Texas, and in Oklahoma and Kansas. While supervising this construction for a period of fifteen months from a business headquarters in Dalhart, Dallam County, defendant Snyder had a room at a hotel part of the time and in a private residence part of the time. He spent most of his time in Dalhart during the weekend, according to his brief, 'commuted' to Vernon on the weekends, holidays, and when 'his work did not require his presence in Dallam County.' On one occasion his wife visited him for a day or two in Dalhart.

The case reaches us upon a petition for writ of mandamus to certify, based upon an alleged conflict between the opinion of the Court of Civil Appeals in the case at bar and:

(1) Agey v. Red Star Supply Co., 113 S.W.2d 212 (El Paso Court of Civil Appeals);

(2) Joy v. Marshall Field & Co., 51 S.W.2d 731 (Waco Court of Civil Appeals);

(3) Caprito v. Weaver, 63 S.W.2d 1043 (Eastland Court of Civil Appeals);

(4) Blucher v. Milsted, 31 Tex. 621;

(5) Houston Printing Co. v. Tennant, 120 Tex. 539, 39 S.W.2d 1089 (Commission of Appeals approved by the Supreme Court).

In this situation, we will issue a writ of mandamus to certify only where the decision in the case at bar is in conflict with other decisions and we do not approve the decision in the case at bar. Stevens v. Willson, 120 Tex. 584, 39 S.W.2d 1088.

The first sentence of art. 1995 provides that an inhabitant of this state shall be sued in the 'county in which he has his domicile'. By a series of early decisions it was established that the word domicile as used in the first sentence of the present art. 1995 did not mean domicile but rather meant residence.

In Brown v. Boulden, 18 Tex. 431, the court in 1857 held that the word domicile was 'evidently used in the sense of residence' because the statute purported to govern inhabitants and 'an inhabitant and resident mean the same thing.' The court went on to distinguish between domicile and residence saying there could be but one domicile and several residences and that a residence is generally transient in nature but becomes a domicile when 'it is taken up animo manendi.'

Three years later in Wilson v. Bridgeman, 24 Tex. 615, the Supreme Court cited Brown v. Boulden in support of a holding that for the purpose of establishing 'jurisdiction' a defendant could have several residences.

In 1863 in Tucker v. Anderson, 27 Tex. 276, the trial court instructed the jury using domicile in its technical meaning (only one-settled permanent home as contrary to temporary summer place) and was reversed on Brown v. Boulden.

In 1869 in Blucher v. Milsted, 31 Tex. 621 (relied on by defendant in the case at bar to establish a conflict), the reconstruction court gave the word domicile its technical meaning without reference to Brown v. Boulden, Wilson v. Bridgeman, or Tucker v. Anderson.

In 1886 in Crawford v. Carothers, 66 Tex. 199, 18 S.W. 500, the Supreme Court ignored Blucher v. Milsted and returned to Brown v. Boulden in holding that a defendant may have a residence in two counties.

In 1888, the Supreme Court cited Brown v. Boulden with approval in holding that a first residence had been abandoned. Faires v. Young, 69 Tex. 482, 6 S.W. 800.

In 1904, this precise question was again before the Supreme Court in Pearson v. West, 97 Tex. 238, 77 S.W. 944, 945. The court cited Brown v. Boulden and Wilson v. Bridgeman to hold that the word domicile as used in the first sentence of what is now art. 1995 means residence. It arrived at this from the fact that the Legislature had re-enacted the law a number of times without changing the material language since Brown v. Boulden. The present art. 1995 was then art. 1194. The court said:

'* * * We think that these facts show conclusively that the Legislature used the word 'domicile' in view of the construction which the court had placed upon it, and that its use was in the sense of 'residence.'

'Considering article 1194 as if it read, 'No person who is an inhabitant of this state shall be sued out of the county in which he has his residence,' the question presented for our decision is, did the plaintiff have the right to institute this suit in either county in which one of the residences of the defendant was, notwithstanding she knew all of the facts and circumstances connected with the occupancy of the two places?'

In 1906 in Taylor v. Wilson, 99 Tex. 651, 93 S.W. 108 the Supreme Court citied Pearson v. West and again cited Brown v. Boulden in holding that a citizen of New York domiciled in New York had established a residence for venue purposes in Jefferson County while retaining his New York domicile.

Thus Brown v. Boulden and Supreme Court cases citing and following it have firmly established that the word domicile in the first sentence of art. 1995 does not mean a technical domicile but something less, a residence. This has caused confusion in some Civil Appeals decisions. For instance, in Joy v. Marshall Field & Co., Tex.Civ.App., 1932, 51 S.W.2d 731, CCA Waco (relied on by defendant in the case at bar to establish a conflict), the court said that 'domicile and residence, within the meaning of the venue statute, are one and the same thing' and then went on to hold that residence must be given the technical meaning of domicile, returning to and citing Blucher v. Milsted (the 1869 case giving domicile in the venue act its technical meaning). This is squarely contrary in principle to the Supreme Court's decisions since Blucher v. Milsted holding that a defendant may have one domicile plus a second residence, upon authority of Brown v. Boulden.

Thus our problem narrows to that of determining whether there is any evidence in the case at bar which will support the trial court's judgment establishing a second residence in a different county from an established domicile.

Since a residence is a lesser-included element within the technical definition of domicile, Evans v. American Pub. Co., 118 Tex. 433, 13 S.W.2d 358, we should start with the technical definition of domicile and eliminate as a test for a second residence those things which can be done only at a domicile. In Taylor v. Wilson, supra, where the defendant was admittedly domiciled in New York, the Supreme Court said: '* * * Decisions of this court holding that the terms 'domicile' and 'inhabitant' used in the first clause mean, respectively, the same things as 'residence' and 'resident,' have relieved the question before us of much of the difficulty which otherwise would attend it. Brown v. Boulden, 18 Tex. 434; Pearson v. West, 97 Tex. (238) 243, 77 S.W. 944. The certificate states that the defendant had a residence in Jefferson county, Tex., and, as citizenship and legal domicile within the state are not, according to the decisions referred to, essential to the privilege given by the first provision of the statute, he clearly falls within it, and is entitled to that privilege'. (99 Tex. 651, 93 S.W. 110.)

The elements of the legal concept of domicile are:

1. An actual residence--

2. The intent to make it the permanent home.

The word home seems to mean a 'true fixed and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.' Ex Parte Blumer, 27 Tex. 734; Switzerland Gen. Ins. Co. v. Gulf Ins. Co., Tex.Civ.App., 213 S.W.2d 161.

From the fact that there can be but one domicile and several residences, we arrive at the conclusion that the element of 'intent to make it a permanent home' is not necessary to the establishment of a second residence away from the domicile.

The dissent of one member of the Court of Civil Appeals in the case at bar cites a line of Civil Appeals cases making the presence of the wife a test to determine whether or not a second residence has been established in so far as a married man is concerned. Devereaux v. Rowe, Tex.Civ.App.,1927, 293 S.W.2d 207. These cases are based upon an election statute, art. 2958, R.C.S., which states that the residence of a married man is the place where his wife resides. Since this statute defines the place a married man can vote and since a person cannot vote in but one county, this statute can have no application to our problem because obviously under art. 2958 a married man can have but one residence for voting purposes,-actually his domicile. Wright v. Marquis, Tex.Civ.App., 255 S.W. 637; Major v. Loy, Tex.Civ.App....

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