Howle v. Twin States Express

Annotate this Case

75 S.E.2d 732 (1953)

237 N.C. 667


No. 527.

Supreme Court of North Carolina.

May 6, 1953.

*735 James P. Mozingo, III, Darlington, S. C., Bell, Horn, Bradley & Gebhardt, Charlotte, for plaintiff-appellant.

Helms & Mulliss, Fred B. Helms, Wm. H. Bobbitt, Jr., Charlotte, for defendant-appellee.

WINBORNE, Justice.

The question presented: Can the North Carolina courts be ousted of jurisdiction of this transitory cause of action between plaintiff, a resident of Tennessee, and defendant, a North Carolina corporation, by an order of the Court of Common Pleas of Florence, South Carolina, entered under the circumstances shown therein, granting to plaintiff the right to take a voluntary nonsuit in an action formerly brought on same cause of action, and then pending in said court, with right to renew the action in Florence County, but without right to bring the action in another county? Careful consideration of all phases of the question lead this Court to negative answer.

A nonresident has full right to bring an action in our courts. See Mc-Donald v. MacArthur Bros. Co., 154 N.C. 122, 69 S.E. 832, and cases cited. Also Howard v. Howard, 200 N.C. 574, 158 S.E. 101; Steele v. Western Union Telegraph Co., 206 N.C. 220, 173 S.E. 583; Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562; Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523.

In the McDonald case, supra [154 N.C. 122, 69 S.E. 833], Clark, C. J., writing for the Court, had this to say: "Indeed, Const. U.S. art. 4, § 2, provides: `The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.' The right to obtain justice by an action in the state courts is one of these privileges. Cooley Const.Law (7th Ed.) 37. In Corfield v. Coryell, 4 Wash. C.C. [371] 380, Fed.Cas.No.3,230, cited by Judge Cooley, among such privileges and immunities is recited the right `to institute and maintain actions of every kind in the courts of the state.'"

In the Alberts case, supra [217 N.C. 443, 8 S.E.2d 524], Clarkson, J., wrote that "Although plaintiff is a nonresident and the action transitory, the doors of the courts of this state are open to her to determine her rights", citing Howard v. Howard, *736 supra; Steele v. Telegraph Co., supra; Ingle v. Cassady, supra.

And in the Cassady case, supra [208 N.C. 497, 181 S.E. 563], the Court said that "if * * * under the lex loci, a transitory cause of action accrues, it may be prosecuted in another jurisdiction, unless forbidden by public policy or the lex fori", citing Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82.

Actions are transitory when the transactions on which they are based might take place anywhere, and are local when they could not occur except in some particular place. The distinction being in the nature of the subject of the injury, and not in the means used or the place at which the cause of action arises. Black's Law Dictionary; Brady v. Brady, 161 N.C. 324, 77 S.E. 235, 44 L.R.A.,N.S., 279; see also Blevens v. Kitchen Lumber Co., 207 N.C. 144, 176 S.E. 262; Bunting v. Henderson, 220 N.C. 194, 16 S.E.2d 836.

Indeed, it is a general rule of law that in actions for personal injury resulting from an accident occurring in another State the laws of the State in which the accident took place governs as to all matters pertaining to the substance of the cause of action, that is, lex loci, while matters relating to procedure are governed by the laws of the State wherein the action is brought, that is, lex fori. See Wise v. Hollowell, supra, and cases cited; also Steele v. Telegraph Co., supra; Ingle v. Cassady, supra; Russ v. Atlantic Coast Line R. Co., 220 N.C. 715, 18 S.E.2d 130; Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126.

Moreover, in North Carolina, "For the purpose of suing and being sued the principal place of business of a domestic corporation is its residence." G.S. § 1-79; Roberson v. Greenleaf Johnson Lumber Co., 153 N.C. 120, 68 S.E. 1064; Eastern Cotton Oil Co. v. New Bern Oil & Fertilizer Co., 204 N.C. 362, 168 S.E. 411; Branch Banking & Trust Co. v. Finch, 232 N.C. 485, 61 S.E.2d 377.

And the words "principal place of business", as so used in the statute, G.S. § 1-79, are regarded as synonymous with the words "principal office" as used in the statute G.S. § 55-2 requiring the location of the principal office in this State to be set forth in the certificate of incorporation by which the corporation is formed. Roberson v. Greenleaf Johnson Lumber Co., supra.

In the light of these principles, and the provisions of the cited statutes, it is seen that the cause of action involved in the present action arose in the State of South Carolina, and is transitory in character, it might have happened anywhere. And even though plaintiff is a nonresident of the State of North Carolina, nothing else appearing, the doors of the courts of this State are open to him to sue the defendant on this transitory cause of action in the county in which defendant's place of business is located, that is, Mecklenburg County.

And in this action the laws of the State of South Carolina govern as to all matters pertaining to the substance of the cause of action, that is, lex loci governs, but matters relating to procedure are governed by the laws of the State of North Carolina wherein the action is brought, that is, lex fori governs.

But this right of plaintiff to sue in North Carolina is challenged by the plea in abatement filed by defendant,based on the order of May 19, 1951, entered in the action brought by plaintiff in the Court of Common Pleas of Florence County and State of South Carolina.

What then is the effect of the order of May 19, 1951? It pertains to procedure, rather than to the substance of the cause of action.

Under the Code Laws of South Carolina, 1952, pertaining to venue the pertinent statute, section 10-303, provides in material part that "the action shall be tried in the county in which the defendant resides at the time of the commencement of the action * * * subject * * * to the power of the court to change the place of trial in certain cases as provided by law." And while the Supreme Court of South Carolina holds that "the right of a resident defendant to a trial in the county of his residence assured him under Section 422 of the Code of Civil Procedure (1932)", *737 now Section 10-303 of the Code Laws of South Carolina, 1952, "is a substantial right", Dunbar v. Evins, 198 S.C. 146, 17 S.E.2d 37, 40, it is not made a constituent part of any given cause of action. Manifestly the statute pertains to the remedy and procedure, and not to the substance of the cause of action.

And in passing it may be of interest to note that in South Carolina an action against a motor vehicle carrier, licensed under Article 3 of Title 58, may be brought in any county through which the motor carrier operates.

Both plaintiff and defendant Ira E. Brown were residents of Florence County, South Carolina, and defendant Twin States Express, a corporation was engaged in the business of transportation of goods via trucks, and doing business in said county, as admitted by the pleadings, at the time plaintiff commenced the action in the court of Common Pleas of that county.

Thus it would seem that Florence County was a proper venue for the action instituted by plaintiff, and at least defendant Brown had substantial right under the statute to a trial therein.

But when the order of May 19, 1951, permitting plaintiff to take a voluntary nonsuit with limited prejudice, that is, with the right to renew the action "in this jurisdiction", Florence County, is read in connection with the statute section 10-303, and the charge, as contained in the affidavit to which the court refers, that plaintiff desired a dismissal of the case in Florence County so as to start the action anew in Darlington County, it is clear that in the clause "without the right to bring an action in another county", the words "another county" were intended to mean another county in South Carolina. The intent is made clear in this sentence: "If a nonsuit is granted without prejudice and plaintiff brought a new action in a neighboring county it would certainly appear the purpose of the motion was for a change of venue". Indeed, a court may not render a judgment which transcends the territorial limits of its authority. 31 Am.Jur. 70, Judgments, § 407; In Re DeFord, 226 N.C. 189, 37 S.E.2d 516; Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798.

Hence it will not be assumed that the South Carolina court intended to extend its order beyond the territorial limits of the State.

"Ordinarily a judgment of nonsuit is not a decision on the merits and is not a bar to a second action for the same cause. Nor will such judgment support a plea of res judicata." 17 Am.Jur. 96, subject Dismissal and Discontinuance, § 79.

Indeed, in Starling v. Selma Cotton Mills, 168 N.C. 229, 84 S.E. 388, 389, L.R.A. 1915D, 850, the Supreme Court of North Carolina, in opinion by Clark, C. J., declared that "the fact that a nonsuit had been formerly taken is not res judicata", citing cases. See also Cooper v. Crisco, 201 N.C. 739, 161 S.E. 310.

True, it appears that in South Carolina there is no statute or court rule governing the question as to when a plaintiff may take a voluntary nonsuit or dismiss or discontinue his action. "The question is controlled wholly by the common law as announced or modified by the decisions of the Court." Parnell v. Powell, 191 S.C. 159, 3 S.E.2d 801.

In the Parnell case, supra, the Court said: "It is well settled that the plaintiff does not possess the unquestioned right at all times and under all circumstances to voluntarily terminate his action, without prejudice to the bringing of a new action by taking a voluntary nonsuit. His right to do so frequently depends upon the effect that it will have upon the defendant's rights. * * If the discontinuance or dismissal before trial will not result in legal prejudice to the defendant, a plaintiff ordinarily has a right to discontinue any action commenced by him. * * * In such a case, through the control which the Court exercises over its order, there is discretion to refuse the discontinuance, but where nothing appears to show prejudice or violation of the rights or interests of the adverse party, the plaintiff may be granted a voluntary nonsuit, conditioned upon such terms and conditions as may be proper to protect the defendant. * * * In our opinion, the Court should *738 exercise its discretion in passing upon such motions, whether made prior to the commencement of the trial or after the trial has been entered upon."

To like effect is the case of Romanus v. Biggs, 217 S.C. 77, 59 S.E.2d 645.

But, on the other hand, the decisions of the Supreme Court of South Carolina are to the effect that a voluntary dismissal or nonsuit brings about the same situation or result as if no suit had been brought. Allen v. Atlanta & Charlotte Air Line R. Co., 216 S.C. 188, 57 S.E.2d 249, 23 A.L.R. 2d 657; Allen v. Southern R. Co., 218 S.C. 291, 62 S.E.2d 507; Kay v. Meadors, 1950, 216 S.C. 483, 58 S.E.2d 893; Moore v. Southern Coatings & Chemical Co., 1952, 221 S.C. 522, 71 S.E.2d 311.

In the second Allen case, supra [218 S.C. 291, 62 S.E.2d 510], it is said that "Manifestly, not only does a voluntary nonsuit terminate the case as a procedural matter; it also wipes the slate clean of all rulings made in the course of the trial resulting in the nonsuit."

And in Kay v. Meadors, supra [216 S.C 483, 58 S.E.2d 895], Stukes, J., wrote for the Court: "These authorities hold the obvious. Nonsuit was the end of respondent's former action and with it went the attachment. But it was not an adjudication of the rights of either party and the resulting situation was the same as if there had been no former action or attachment, so far as the right to sue again and attach again is concerned. We know of no statute or other rule of law, and none has been cited, whereby voluntary nonsuit in attachment proceedings operates as res judicata, which is the substance of appellant's contention. `It is fundamental that a voluntary dismissal or nonsuit brings about the same situation or result as if no suit had been brought'", citing Allen v. Southern R. Co., supra. And the Court, referring to Munn v. Munn, 146 S.C. 290, 143 S.E. 879, said: "A first warrant of attachment was vacated and a second was attached in part upon the ground that vacation of the first made the matter res judicata. The contention was rejected, which must be the result here."

Moreover, in the Moore case, supra [221 S.C. 522, 71 S.E.2d 312], in a Per Curiam opinion, the South Carolina Court held: "Having concluded that voluntary nonsuit was properly within the discretion of the trial court and it having been granted, the situation is as if no action had been brought, which is the general rule, and assignments of intermediate errors will ordinarily not be considered on appeal", citing Annotation 11 A.L.R.2d 1407, the Allen cases supra and Kay v. Meador, supra.

But be that as it may, the order in question, as we interpret it, was not intended to have, nor does it have the force and effect of precluding plaintiff from prosecuting the present action in this State. Hence the judgment from which the appeal is taken is