Smith v. . Patterson , 159 N.C. 138 ( 1912 )

Civil action, heard on motion for change of venue from the county of Mecklenburg, where same was instituted, to the county of Henderson. North Carolina.

The action was to recover damages for the death of intestate, caused by the movements and operation of an engine of defendant company attributed to the negligence of the company and of E. L. Patterson, the engineer and employee of defendant company at the time of the killing.

The court denied the motion and entered judgment embodying the relevant facts in terms as follows:

"This cause coming on to be heard at the March (1912) Term of Superior Court of Mecklenburg County, before his Honor, C. C. Lyon, judge presiding, and being heard upon a motion filed by the defendants at the January (1912) Term of the Superior Court of Mecklenburg County, the following facts are found by the court: "That this action was brought to the January (1912) Term of this court, and that (139) at said term, and before the time for filing answer had expired, defendants filed a written motion to remove this cause to Henderson County; that the intestate, Joshua Gosnell, was killed in Melrose, in Polk County, North Carolina, on or about 28 July, 1911, and was at the time of his death a resident of the county of Henderson, State of North Carolina; that subsequent to the time of the said Gosnell's death, and previous to the time of the institution of this action, W. M. Smith, a resident of Mecklenburg County, North Carolina, now and at the time of death of said Gosnell, qualified as administrator of the estate of Joshua Gosnell, before the Clerk of the Superior Court of Henderson County, North Carolina; that the defendant E. L. Patterson is, and was at the time of the death of the said Gosnell, a resident of Polk County, North Carolina. It is, therefore, considered and adjudged by the court that this action was properly brought in Mecklenburg County, North Carolina; and it is further ordered and adjudged that the defendant's motion to move to Henderson or Polk County be not allowed."

Defendants excepted and appealed. after stating the case: The validity of his Honor's ruling is dependent upon the proper construction of section 424, Revisal, in terms as follows: "In all other cases the action shall be tried in the county in which the plaintiffs or the defendants, or any of them, shall reside at the commencement of the action; or if none of the defendants shall reside in the State, then in the county in which the plaintiffs, or any of them, shall reside; and if none of the parties shall reside within the State, then the same may be tried in any county which the plaintiff shall designate in his summons and complaint, subject, however, to the power of the court to change the place of trial in the cases provided by statute: Provided, in all actions against railroads the actions shall be tried either in the county where the cause of action arose, or in some county where the plaintiff resided at the time the cause of action arose, or in some county adjoining the county in which the cause (140) of action arose, subject, however, to the power of the court to change the place of trial in the cases provided by statute." Authoritative interpretations of this and legislation of similar import elsewhere would seem to favor the position that in respect to actions instituted by an administrator and coming within the effect of the proviso, the terms appearing therein, "where plaintiff resided at the time the cause of action arose," have reference to the residence of the individual holding the office and not to the official residence or place where he may have qualified. Whitford v. Insurance Co., 156 N.C. 42; Roberson v. LumberCo., 153 N.C. 120; R. R. v. Stith, 120 Ky. 237; Turner v. R. R.,110 Ky. 819. Without present decision of this question, however, we are all of opinion that the proviso to the section should be construed and held to apply to cases where a railroad company alone is defendant, and that the venue in actions where there are other parties defendant should come within the body of the act. This is not only the primary and natural meaning of the language used, but without express requirement it would be unreasonable to hold that the rights of all other litigants should be made subservient to a particular class, and this without regard to the convenience of the parties or the amount of the interest involved.

On authority, therefore, and owing to the joinder of the individual defendant Patterson, the action is properly brought in Mecklenburg County.Whitford v. Insurance Co., supra.

There is no error, and the judgment below is

Affirmed.

Cited: Biggs v. Bowen, 170 N.C. 35.

(141)