PITTS FIRE SAFETY SERV. v. City of Greensboro

255 S.E.2d 615 (1979)

PITTS FIRE SAFETY SERVICE, INC. v. CITY OF GREENSBORO.

No. 7825DC744.

Court of Appeals of North Carolina.

June 19, 1979.

*616 Sigmon, Clark & Mackie by E. Fielding Clark II, Hickory, for plaintiff-appellee.

Dale Shepherd, Greensboro, for defendant-appellant.

VAUGHN, Judge.

The issue we address is whether the trial court erred in denying defendant's motion for a change of venue. Venue in this action is governed by G.S. 1-77 which provides, in pertinent part, as follows:

"Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial, in the cases provided by law: * * * * * * (2) Against a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office; or against a person who by his command or in his aid does anything touching the duties of such officer."

An action against a municipality is governed by this statute. Lee v. Poston, 233 N.C. 546, 64 S.E.2d 835 (1951). The issue to be determined is where the cause of action arose because that is the factor controlling venue in this case.

In Coats v. Hospital, 264 N.C. 332, 141 S.E.2d 490 (1965), plaintiffs brought suit against Sampson County Memorial Hospital to recover in quantum meruit for labor and material furnished to the hospital. Although plaintiffs did not contend that the cause of action arose outside of Sampson County where the hospital was located, the Court stated:

"Patently, this cause of action arose in Sampson County. Plaintiffs furnished to defendant there all the material and labor the value of which they now seek to recover in quantum valebant and in quantum meruit. The debt is the cause of action, and it arose where the debt originated. Steele v. Commissioners, 70 N.C. 137, 139. `A broad, general rule applied or stated in many cases is that the cause of action arises in the county where the acts or omissions constituting the basis of the action occurred.' Annot., Venue of actions or proceedings against public officers, 48 A.L.R.2d 423, 432." Coats v. Hospital, supra, at 334, 141 S.E.2d at 492.

Thus the Court held that venue was governed by G.S. 1-77 and that Sampson County was the proper place of venue.

We find this analysis applicable in the present case. Plaintiffs delivered equipment in Guilford County where the contract was to be performed. The defendant's failure to pay for this equipment was the basis of this cause of action and it occurred in Guilford County. We hold, therefore, that the lower court erred in *617 failing to grant defendant's motion for a change of venue.

Reversed and Remanded.

CLARK and CARLTON, JJ., concur.