Watson v. North Carolina R. Co

• Citation: 67 S.E. 502,152 N.C. 215
• Court: United States State Supreme Court of North Carolina
• Decision Date: 23 March 1910
• Parties: WATSON v. NORTH CAROLINA R. CO.

67 S.E. 502

152 N.C. 215

WATSON

v.NORTH CAROLINA R. CO.

Supreme Court of North Carolina.

March 23, 1910.

1. Railroads (§ 22^*) — Actions Against — "Residence" op Plaintiff—"Venue.

One's residence. within the proviso to Revisal 1905, § 424, added by Laws 1905, c. 367, that an action against a railroad shall be tried in one of certain counties, including that in which plaintiff "resided" when the cause of action arose, includes the idea of permanency; so that plaintiff having previously resided in W. county till he went to live in R. county, when employed as a car repairer by defendant under a contract terminable at the will of either party, where he lived two months till injured, and having never intended to change his residence from W county, he retained his residence in the latter county.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 22.*

For other definitions, see Words and Phrases, vol. 7, pp. 6151-6161; vol. 8, p. 7788.]

2. Domicile (§ 9*)—Evidence—Intent.

It is competent for one to testify to his intent on the question whether he had changed his residence.

[Ed. Note.—For other cases, see Domicile, Cent. Dig. § 38; Dec. Dig. § 9.*]

3. Railroads (§ 22*)—Actions Against Railroads—Venue.

The proviso to Revisal 1905, § 424, added by Laws 1905, c. 307. that an action against a railroad shall be tried in the county where the cause of action arose or in which plaintiff resided when the cause of action arose, or in some county adjoining that in which such cause arose, was not intended to prohibit an action being brought against a railroad in the county where plaintiff resided, but to prohibit the selection of any county where the company had its track (the former law), except the county where the cause of action arose or an adjoining county.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 22.*]

Appeal from Superior Court, Wayne County; W. R. Allen, Judge.

Action by Kirby Watson against the North Carolina Railroad Company. From an order denying a motion to remove the cause, defendant appeals. Affirmed.

W. B. Rodman and J. L. Barham, for appellant.

Aycock & Winston and W. T. Dortch, for appellee.

CLARK, C. J. This was a motion to remove this action, which was brought in Wayne to Rowan county for trial by virtue of the proviso in Revisal, § 424: "In all actions against railroads the action shall be tried either in the county where the cause of action arose, or in the county in which the plaintiff resided at the time the cause of action arose or in some county adjoining the county in which the cause of action arose."

Upon affidavits filed by both parties his honor found the facts as follows: "(1) That the parents of the plaintiff, Kirby Watson, are now, and have been for more than 20 years, residents of Wayne county. (2) That the plaintiff was born in Wayne county and lived in said county until January or February, 1909. (3) That in January or February, 1909, he married in Johnston county, and in March, 1909, he entered the service of the Southern Railway Company at Spencer, Rowan county, as a car repairer under a contract which either party could terminate at will. (4) That, after entering into said contract, he took his wife to Spencer, and he and his wife lived at Spencer from that time up to the time of the injury complained of. (5) That the plaintiff has not intended to change his residence from Wayne county. (6) That the plaintiff is not now 21 years of age. (7) That the cause of action arose in Rowan county, and upon said facts, being of the opinion that the plaintiff is now and was on May 6, 1909, a resident of Wayne county, it is considered and adjudged that said motion be denied."

The word "residence" has, like the word "fixtures, " different shades of meaning in the statutes (Overman v. Sasser, 107 N. C. 432, 12 S. E. 64, 10 L. R. A. 722), and even in the Constitution, according to its purpose and the context (Tyler v. Murray, 57 Md. 441). See cases cited in 7 Words & Phrases, under head "Residence"; also 24 A. & E. (2d Ed.) 692; 34 Cyc. 1647. Even in our Constitution the word "reside" has a different meaning in the following articles. Article 3, § 5: "The Governor shall reside at the seat of the government of this state." Article 4, § 11: "Every judge of the superior court shall reside in the district for which he is elected." Article 6, § 2: "He shall have resided in the state of North Carolina for two years, in the county six months, and in the precinct, or other election district in which he offers to vote, four months next preceding the election." And in the statutes the exact shade of meaning depends somewhat upon whether the enactment concerns suffrage and eligibility to office, attachment and homestead exemptions, publication of summons, or...