PECOS & N. T. RY. CO. et al. v. THOMPSON, 167 S.W. 801

BBOWN, C. J. A plea to the jurisdiction of the district court of Boberts county was filed, claiming that the venue was properly in Potter county, was submitted to the jury by the trial court, and the issue was decided adversely to the defendant below. The plaintiff in error presented the issue on appeal to the Court of Civil Appeals for the Seventh District, and by that court also decided adversely, and the same question is now presented to this court.

In the trial court it was an issue of fact, but in this court it is an issue of law^— that is, this court must take the view of the evidence most favorable to the contention of the defendant in error; and, if there be sufficient evidence to support the finding of the jury, we will not disturb their verdict no matter what may be our view of the evidence.

We copy the statement of the evidence as it appears in the brief of defendant in error filed in this court, which follows: “Plaintiff was born in Kentucky and, during bis childhood, was carried by his mother to Alabama, where, it is undisputed, both resided until June 20, 1908. Plaintiff is a laboring man, and the evidence indicates that before the last-named date he had had occasional employment away from home.

He had worked as brakeman for the Bouisville & Nashville Bailway Company, running between Mobile and New Orleans, spending his time between the two places and partly in one and partly in the other, but keeping his home in the same little town near Mobile, and visiting it occasionally. His mother then and now owns a home in Alabama, which he says he gave her, paying the principal part of the purchase money, and he lived in the same town. He has two children, five and three years old, respectively, and two sisters, all in Alabama.

The children are under the charge of his mother generally, but when he testified were with his sisters. He and his wife separated and were divorced in 1908, and on June 20, 1908, he left his home, leaving not only his children, but his bedstead, beds, chairs and parts of his clothes in the house.

His intention when he left was to return when he made some money. ■ He gives the following account of his wanderings between June 20, 1908, when he last left home, and January 18, 191Ó, when he received the injury for which this suit was brought: He first went to Mobile; stayed there a day and night; thence to Meridian, Miss.; thence to Jackson, Tenn.; thence to Louisville, Ky., and stayed two nights, trying for work and failing; thence to Chicago, staying one day and night; thence to Minneapolis, Minn., staying three weeks, working for a motor company; thence to -, Minn., working in the harvest fields; thence to Fargo, N.

D., staying until the last of January, 1909, working in harvest fields, in an elevator, and as switchman for the Northern Pacific; thence back to Minneapolis, staying two or three months, working for the same motor car company as before; thence, about April 1, 1909, to Haíleville, Okla., which is near Amarillo, staying- how long he did not remember, but working seventeen days for the Rock Island Railway Company. He says he does not remember what 'became of him after this, but he next worked for the Texas Oil Company, near Beaumont, commencing July 5, 1909.

He was in the town of Beaumont for a while before and after working for the oil company, eating at restaurants and sleeping at different places, at no two the same night. He worked for the oil company from July to November, 1909, on a pipe line, beginning 3Ó miles, and quitting 100 miles, from Beaumont, and sleeping and eating in camp, without definite time of employment, but employed for as long as his services were wanted and he chose to stay.” “When he left camp he stayed in Beaumont a week ‘rambling around,’ camping out and fishing part of the time, and sleeping and eating here and thjsre.

He let his people know where he was and received letters from them at Beaumont. From Beaumont he went to Ft. Worth, applying for work at Somerville on the way. At Ft. Worth he was told that the Santa Fé was begging for men at Amarillo, and he went there and obtained a position with the defendant, after having applied in vain to the Ft. Worth & Denver City Railway Company.

Speaking of these wanderings, he says it was a fact that during the time between his departure from Alabama and the time when he was hurt, he was ‘just floating around,’ getting a job whenever and wherever he could.” “This brings us down to the time of his arrival at Amarillo, where he obtained employment December 5 or 6, 1909, and was hurt January 18th following. The employment was on what was called ‘the chain gang,’ and was as brakeman, having no regular job, but going when and where ordered.

In getting the employment he had to give an address at which he could be found when needed, so as to be notified to go on duty, and gave as his address a-room in the Santa Fé Hotel. As a matter of fact, he did not regularly sleep in that room nor eat at that hotel, even when in Amarillo, but slept often in the caboose and in different rooms and places when he occupied rooms at all. His runs were between Amarillo and Clovis, N. M., and between Amarillo and Waynoka, Okla. He was sometimes in Panhandle, sometimes in Canadian, sometimes in Miami.

Of the month and twelve days between his employment and injury he spent about ten days and seven to ten nights in Amarillo and about ten days in Waynoka, spending more time in the latter place than in the former, because of the longer lay-over there. He never had washing done in Amarillo, but did his own washing at Waynoka and Clovis. He mailed letters from any place at which he happened to be, and the only ones received were at Canadian and Clovis. He has sent money, to his mother since he left Alabama, some .as late as the morning of his injury. He had never voted since he left Alabama.

In the application for employment, he gave Amarillo as his address, and never changed it, because he had none, and that could be his address as well as any other place. During this employment he was first at one place and then another, in Clovis, Waynoka, Canadian, Miami, and Panhandle, and could have gotten mail at either place. He never told people to address him at Amarillo. His headquarters were not at the Santa Fé Hotel all the time. He didn’t change the address given in his application, but notified the callboy where to find him. Told them at the Santa Fé Hotel. Was not at that hotel more than ten nights.

He never stayed at any place long enough to acquire a home; had no headquarter’s at Beaumont or Amarillo. Canadian was as much headquarters as Amarillo; received orders there several times. I-Iad two layoffs ; one at Amarillo; one at Waynoka. Had no room, grip,-or trunk at Amarillo, and never called that place home. Kept his clothes in the caboose. He had formed and declared his purpose to quit.” The venue in this character of cases is prescribed by the twenty-sixth

section of

article 1830, vol. 1, McEachin’s Digest: “All suits against railroad corporations, or against any assignee, trustee or receiver operating any railway in the state of Texas, for damages arising from personal injuries, resulting in death or otherwise, shall be brought either in’the county in which the injury occurred, or in the county in which the plaintiff resided at the time of the injury; provided, that if the defendant railroad corporation does not run or operate its railway in, or through, the county in which the plaintiff resided at the time of the injury, and has no agent in said county, then said suit shall be brought either in the co.unty in which the injury occurred, or in the county nearest that in which the plaintiff resided at the time of the injury, in which the defendant corporation runs or operates its road, or has an agent; and provided, further, that, in case that the plaintiff is a nonresident of the state of Texas, then such suit may be brought in any county in which the defendant corporation may run or operate its railroad, or may have an agent; provided, that, when an injury occurs within one-half mile from the boundary line dividing two counties, suit may be brought in either of said counties.” It will be seen from this provision of the statute that the venue, as a general rule of practice, is fixed in the county where the injury occurred or where the plaintiff resided at the time of the injury, if he had his residence in any part of the state.

There are two provisos embraced in the statute under which suit may he brought in a county other than that in which the injury occurred. The second proviso accords to the plaintiff, who is a “nonresident of the state,” the right to institute such action in any county through which the railroad runs or operates a railroad, or may have an agent. This proviso is in the nature of an exception to the general rule prescribed by the statute for determining the venue of such suit, and, being an exception, it must be strictly construed. Lewis’ Sutherland Statutory Construction, vol. 2, § 352.

Applying this rule of construction to the facts of this case, it devolves upon the plaintiff to prove that he was a nonresident of the state of Texas; otherwise he could not maintain his action in any county other than that in which the injury occurred'. In this view of the case, it becomes unimportant to consider, the question of Thompson’s “residing” at Amarillo at the time of the injury; for, if he was not a nonresident of the state, no matter where he resided in the state, he must have filed his suit in the county where the injury occurred.

The inquiry to be made is: Do the facts of this case show that Thompson was at the time of the institution of this suit a nonresident of this state within the meaning of the statute quoted.

I have carefully examined the authorities for a definition of the term “nonresident,” and have found them, to be uniform in holding that he was not such within the meaning of the law, in order to have the privilege of the exception to the general rule fixing the venue, which would give him the right to choose any county through which the railroad was operated, he must have been a resident of some other state, territory, or county that is he must be at the time “living” outside .of Texas. “ ‘Residence’ means living in a particular locality, but ‘domicile’ means living in that locality with the intent to make it a fixed and permanent home.

Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place, and also an intention to make it one’s domicile.” Flatauer v. Loser, 156 App. Div. 591, 141 N. Y. Supp. 953; In re Newcomb, 192 N. Y. 238, 84 N. E. 950. It follows logically and necessarily that a man who had no residence elsewhere but resides in Texas being bodily present in this state engaged in business as Thompson was, cannot be a “nonresident” of this state. Egener v. Juch, 101 Cal. 105, 35 Pac. 432.

If it be admitted that Thompson was as frequently and continuously at other places as he was at Amarillo, it does not affect the conclusion; for, whether he was a resident of Potter county or some other county in Texas, he was not a nonresident of the state. The fact that in the discharge of his duties he sometimes was out of the state cannot affect this question. Prom his own evidence there can be no doubt that he resided • — i. e. was bodily present — within the state of Texas and was engaged in business in this state at the time he was injured and at the time he instituted this suit.

The evidence is definite and undisputed; therefore it was the duty of the court that' tried this case to have transferred it on the plea of privilege to the county in which the injury occurred, which was Potter county; and, on the evidence adduced, the court should have charged the jury to so find under the undisputed evidence and the law. It would not be good practice in this court to determine a question of law of this character, which leaves no fact to be found by the jury, and hesitate to apply it to the undisputed evidence, the plaintiff’s own statements.

The most favorable conclusion for Thompson would be that he was a transient person, but that would not sustain his claim to choose the venue, because it is not within the proviso. A transient person must sue in the county in which the injury occurred. As the case was presented on the trial in the district court, the special charge should have been given, but, under our conclusion as to the law, the issue presented by that charge becomes immaterial.

It becomes the duty of this court to enter the judgment which the trial court should have entered; and it is therefore ordered that the judgments of the Court of Civil Appeals and of the district court be, and the same are, hereby reversed, and this cause is remanded to the district court of Roberts county, with directions that the same he transferred to the district court of Potter county.