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ants bring error. PECOS & N. T. RY. CO. et al. v. THOMP-manded, with directions. SON. (No. 2370.)
(Supreme Court of Texas. June 17, 1914.) 1. APPEAL AND ERROR (§ 1094*)-WRIT OF EBROR TO SUPREME COURT-REVIEW OF EVI
The Supreme Court, on writ of error to review a judgment of the Court of Civil Appeals affirming a judgment of the trial court, will not disturb the verdict, where there is sufficient evidence to support it.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. 1094.*]
2. RAILROADS (§ 22*) - ACTIONS - VENUE — STATUTORY PROVISIONS-CONSTRUCTION.
The proviso in Rev. St. 1911, art. 1830, subd. 26, that a nonresident may sue a railroad company in any county in which the company operates its road, or has an agent, is an exception to the general provision that actions against railroad corporations shall be brought either in the county in which the injury complained of occurred or in which plaintiff resided at the time of the injury, and must be strictly construed; and a plaintiff seeking the benefit thereof must prove that he was a nonresident at the time of the injury, and that he was a resident of some other state, territory, or country, and was, at the time of the accident, living outside
[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 46-50; Dec. Dig. § 22.*]
3. RAILROADS (§ 22*)- ACTIONS - VENUE STATUTORY PROVISIONS · CONSTRUCTION "RESIDENCE"-"DOMICILE.'
"Residence," within Rev. St. 1911, art. 1830, subd. 26, fixing the venue of actions against railroad corporations for damages for personal injuries, means living in a particular locality, and requires bodily presence as inhabitant in a given place, as distinguished from "domicile," which means living in a locality with intent to make it a fixed and permanent home; and one who has no residence elsewhere, but resides in Texas, ing bodily present in the state engaged as a laborer there, is not a nonresident.
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 his 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 lastnamed date he had had occasional employment away from home. He had worked as brakeman for the Louisville & Nashville Railway 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 he says he gave her, paying the principal part then and now owns a home in Alabama, which 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, 1910, 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
Error to Court of Civil Appeals of Sec- and night; thence to Minneapolis, Minn., stayond Supreme Judicial District. ing 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 Northing two or three months, working for the same ern Pacific; thence back to Minneapolis, staymotor car company as before; thence about
[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 46-50; Dec. Dig. § 22.*
For other definitions, see Words and Phrases, vol. 7, pp. 6151-6161; vol. 8. p. 7188; vol. 3, pp. 2168-2179; vol. 8, pp. 7641, 7642.]
4. RAILROADS (§ 22*) -ACTIONS - VENUE STATUTORY PROVISIONS.
A laborer who left his home and went from place to place in search of work, and working at short intervals, and who obtained work as a brakeman at a town, and who continued in such employment for something over a month up to the time of an injury, was either a resident of the state or a transient, and an action for the injury must be brought in the county in which it occurred or in the county in which he resided at the time, as required by Rev. St. 1911, art. 1830, subd. 26.
[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 46-50; Dec. Dig. § 22.*]
Hawkins, J., dissenting.
Reversed, and cause re
Action by W. C. Thompson against the Pecos & Northern Texas Railway Company and another. There was a judgment of the Court of Civil Appeals (140 S. W. 1148) affirming a judgment for plaintiff, and defend
H. E. Hoover, of Canadian, Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for plaintiffs in error. Barrett, Jones & Yates, of Amarillo, N. A. Stedman, of Austin, and F. A. Williams, of Galveston, for defendant in error.
BROWN, C. J. A plea to the jurisdiction of the district court of Roberts 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.
For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
pose to quit."
April 1, 1909, to Haileville, Okla., which is near | caboose. He had formed and declared his purAmarillo, 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 "All suits against railroad corporations, or was in the town of Beaumont for a while be- against any assignee, trustee or receiver operfore and after working for the oil company, eat- ating any railway in the state of Texas, for ing at restaurants and sleeping at different damages arising from personal injuries, resultplaces, at no two the same night. He worked ing in death or otherwise, shall be brought eifor the oil company from July to November, ther in the county in which the injury occur1909, on a vipe line, beginning 30 miles, and red, or in the county in which the plaintiff requitting 100 miles, from Beaumont, and sleep-sided at the time of the injury; provided, that ing and eating in camp, without definite time if the defendant railroad corporation does not of employment, but employed for as long as his run or operate its railway in, or through, the services were wanted and he chose to stay." 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 county 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."
"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 there. 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.'
[2, 3] The venue in this character of cases is prescribed by the twenty-sixth section of article 1830, vol. 1, McEachin's Digest:
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 statutę under which suit may be 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.
"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 Hote Was not at that hotel more than ten nights. He never stayed at any place long enough to acquire a home; had no headquarters at Beaumont or Amarillo. Canadian examined the authorities for a definition of was as much headquarters as Amarillo; receiv- the term "nonresident," and have found them ed orders there several times. Had two layoffs; one at Amarillo; one at Waynoka. Had to be uniform in holding that he was not no room, grip, or trunk at Amarillo, and never such within the meaning of the law, in or
 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
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 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. From 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.
HAWKINS, J. (dissenting). I concur in the conclusion that for want of a proper charge as to what constitutes residence under R. S. 1911, art. 1830, subd. 26, relating to venue, the judgment of the Courts of Civil Appeals and that of the district court must be reversed, and this cause remanded to the district court for a new trial; but I cannot concur in directing the district court of Roberts county, in which this suit was filed, to peremptorily transfer it to the district court of Potter county.
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 be transferred to the district court of Potter
The verdict of the jury upon defendant's plea of privilege to be sued in Potter county, the county in which plaintiff's injuries occurred, and in which defendants alleged plaintiff resided at the time he received said injuries, was adverse to defendants, and its effect was to sustain plaintiff's contention that at the date of said injuries he was a nonresident of this state. Had said verdict upon said plea been rendered under a proper charge as to what constitutes residence under said statute, it would, I think, have been conclusive upon this court, inasmuch as it was sustained by the Court of Civil Appeals, and there is in the record evidence which, as I understand it, tends to support said verdict. For a condensed statement of facts see the opinion of the Court of Civil Appeals in 140 S. W. 1148.
There was evidence tending to show, and which, I think, would support a finding by the jury, that, at the date of his injuries, plaintiff was not residing at Amarillo, within the meaning of said statute. Plaintiff testified, in substance, that he did not have a regular job in Amarillo, but was employed as a brakeman and was with a "chain gang," his duties being to run from Amarillo to Clovis, N. M., and return, and from Amarillo to Waynoka, Okla., and return; was called once to go to Roswell, N. M., but that order was canceled; by his directions had one letter come to him at Canadian, which we judicially know is the county seat of Hemphill county, Tex., and one at Clovis, N. M.; had some mail sent to him to general delivery at Amarillo; upon getting employment he had to give an address at which he could be found when needed, and gave as such address a room in the Santa Fé Hotel, in Amarillo, because he had no address, and that could be his address the same as any other place; during the time he stayed at Amarillo he did not have a room there regularly; did not have a grip or trunk there; never called that his home; when he came to Amarillo he stopped there; sometimes stayed and slept in his caboose there; never did any washing in Amarillo ior to his injuries, but did his own washing at Waynoka and at Clovis; kept his clothes in his caboose and changed them to the other caboose whenever he changed cabooses; spent from seven to ten nights in Amarillo; slept one night there at the Union Hotel and several nights there in
Hotel there; would just go in and ask them if they had a bed; if they did, would pay for it; some nights would be in a room with others, some nights in bed with some one; would not occupy the same room at the Santa Fé Hotel or other place in Amarillo that he occupied the night before; did not notify his employer of change of direction as to where he could be found, but did notify the callboy where to find him; during the month and twelve days between the date of his employment and the date of his injury, he spent about ten days in Waynoka, more time than he spent in Amarillo, because of the longer lay-over at Waynoka; his headquarters were never in Amarillo, and you could say that Canadian was as much his headquarters as was Amarillo; he received orders several times in Canadian; he did not think the principal part of his work was out of Amarillo; he worked as much out of Canadian as out of Amarillo; was eleven days between Canadian and Waynoka; during said month and twelve days he was laid off twice, once in Amarillo and once in Waynoka; on the latter occasion he had not gone to Waynoka on "chain gang" from Amarillo, but had gone there from Canadian and was laid off there; on the day before he was injured he had been to Clovis, and had come from there to Amarillo on the day of his injury. The evidence does not disclose what time had elapsed between the date of said injury and plaintiff's stay at Waynoka or at Canadian.
that a man may have a legal domicile in an-
I think that, under the circumstances of
The majority opinion says:
"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."
LANE et ux. v. KUEHN. (No. 2371.)
A judgment for plaintiff in a suit to try
Error to Court of Civil Appeals of Sixth
Action by Charles Kuehn against Joe Lane and wife. A judgment for plaintiff was affirmed by the Court of Civil Appeals (141 S. W. 363), and defendants bring error. Affirmed.
W. T. Allen, of Henrietta, for plaintiffs in Taylor, Jones & Humphrey, of Henrietta, for defendant in error.
BROWN, C. J. The Court of Civil Appeals found and stated the following facts:
My idea of this matter is that mere "bodily presence" in a county is insufficient to conclusively prove "residence" there; that "the the most favorable conclusion for Thompson," based on his own evidence, is that, although he had worked for several weeks for the plaintiffs in error, he did not stay at any one place meanwhile long enough or under circumstances such as to justify this court in saying, as a matter of law, that he was "residing" there, and that, as to said period of his employment, and even as to the entire period of his actual existence in the state of Texas, his movements were so transitory-he was to such extent a transient person-as to open the way for the jury to find, upon his testimony as to his family, his home, and his belongings in and his formed and expressed purpose to return there, that he "resided" in Alabama; that he was a nonresident of this state at the time of his injury. That is what I understand to be the effect of the verdict of the jury. I do not believe this court can properly say, as a matter of law, that there was no evidence to support said verdict. My understanding of said venue statute is
"Lot 18, block 2, in Oil City, Clay county,
judgment and their deed from the sheriff as | 2. RAILROADS (§ 72*)
Assuming, as seems to be admitted, that the first judgment recovered by defendant in error against Frank Kuehn for the debt was void, the judgment of the district court in the suit of Charles Kuehn against Pearl Lane and husband was correct; but it con
ferred no title on Pearl Lane, nor did it affect the right of Charles Kuehn to establish his debt by a subsequent valid judgment. The void judgment did not affect the rights of the parties accruing under a subsequent judgment for the debt. The judgment of the district court here pleaded barred a recovery by Charles Kuehn under his purchase at a sale made under the void judgment, but did not adjudicate and bar his right under a valid judgment upon the same debt, nor did said judgment relieve the conveyance from Frank Kuehn the debts or to his then wife, Pearl Kuehn, of its infirmity as a fraudulent
The judgment of the Court of Civil Appeals is affirmed.
LOCATION OF ROAD AND STATIONS-CONTRACTS AS TO LOCATION. The grantee of a tract of land upon which a railroad located its right of way and a station was entitled to the benefit of any contract with his grantor for the permanent maintenance of the same thereon.
[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 168-178; Dec. Dig. § 72.*]
3. RAILROADS (§ 17*) - OFFICERS AND DIRECTORS-CONTRACTS AS TO LOCATION OF ROAD AND STATIONS.
Under Rev. St. 1911, art. 6445, vesting all the corporate powers of a railroad corporation in its board of directors, and article 6446, providing that the president shall perform such duties as the directors may require, the president could not contract for the maintenance of the road, its offices and station on certain land, in the absence of express authority from or ratification by the directors.
[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 36-38; Dec. Dig. § 17.*] 4. RAILROADS (§ 72*) - SALES RIGHTS AND LIABILITIES OF PURCHASERS.
1. APPEAL AND ERROR (§ 1177*)-DETERMINATION AND DISPOSITION OF CAUSE-REVERSAL -REMAND.
The Court of Civil Appeals may reverse a judgment on the weight of the testimony, but, if the evidence, when considered in the light most favorable to the successful party, would sustain the judgment, it cannot render judgment, but must remand the case.
A corporation purchasing a railroad was only charged with such burden or condition as attached by law, and no presumption could arise from the mere occupancy of land under deed that there was a private agreement with the president of the railroad that the road, its offices and station, should be permanently located thereon.
[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 168-178; Dec. Dig. § 72.*]
Error to Court of Civil Appeals of Fourth Supreme Judicial District.
Action by James Logue against the Southern Kansas Railway Company of Texas. From a judgment of the Court of Civil Appeals (139 S. W. 11) reversing a judgment for plaintiff, and rendering judgment for defendant, plaintiff brings error. Affirmed.
R. E. Carswell, of Decatur, R. R. Hazlewood, of Amarillo, and Williams & Stedman, of Austin, for plaintiff in error. Terry, Cavin & Mills, of Galveston, and Madden, Trulove & Kimbrough and Frank M. Ryburn, all of Amarillo, for defendant in error.
"Appellee sued appellant for damages alleged to have accrued to him by reason of the depreciation in value of town lots and lands in and near the town of Washburn, in Armstrong county, Tex., the depreciation arising from the act of appellant in taking up its rails and disconLOGUE v. SOUTHERN KANSAS RY. CO. county, and Washburn, and the construction of tinuing its road between Panhandle, in Carson OF TEXAS. (No. 2354.) (Supreme Court of Texas. June 17, 1914.)
its road direct from Panhandle to Amarillo, leaving Washburn 6 miles off its line. It was alleged that in 1887 R. E. Montgomery was in 98, and 99, which lay in such contiguity to each possession of four sections of land. Nos. 62, 63, other as to substantially form a square, and a right of way was granted the Ft. Worth & Denver Railway Company across said sections, together with a depot ground about the center of said railway company about 100 acres out of the square, and also there was donated to the said square, the consideration being that the railway company would establish on said land its depot, which was done, and the station called Washburn; that afterwards the Panhandle Railway Company was incorporated to build a
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4597-4604, 4606-4610; Dec. Dig. § 1177.*]
BROWN, C. J. In order to place the case properly before the court, we will copy from the opinion of Chief Justice Fly: