Home Finance Co. of Georgetown v. O'DANIEL

74 S.E.2d 717 (1953)

237 N.C. 286

HOME FINANCE CO. OF GEORGETOWN, Inc., v. O'DANIEL et al.

No. 667.

Supreme Court of North Carolina.

March 4, 1953.

*720 J. D. Franks, Jr., Greensboro, for H. W. Kennedy, defendant-appellant.

Adam Younce, Greensboro, for plaintiff-appellee.

PARKER, Justice.

The defendant Kennedy assigns as his Error No. One the refusal of the court to nonsuit the plaintiff at the close of the plaintiff's evidence, and assigns as his Error No. Two the refusal of the court to nonsuit the plaintiff at the close of all the evidence. Kennedy in his brief states: "G.S. 44-38.1 applied to the entire transaction in controversy and the motions for judgment as of nonsuit should have been allowed." He further states in his brief "if for any reason G.S. 44-38.1 should be held inapplicable to the instant case because of the effective date of the statute, it is respectfully submitted that G.S. 47-20 and G.S. 47-23 would be controlling."

G.S. § 44-38.1 became effective July 1, 1951, and did not apply to pending litigation. The truck was sold by Blake to Kennedy July 10, 1951, and this action was instituted September 17, 1951. G.S. § 44-38.1 was in full force and effect when Blake sold the truck to Kennedy. Whether Sub-sections (1) and (2) of G.S. § 44-38.1 apply depends upon the question as to whether the truck has acquired a situs in North Carolina. Kennedy in paragraph two of his further answer and defense alleges the truck was brought into North Carolina with the intent that it be permanently located in this State, and has been in North Carolina for more than two months next preceding the commencement of this action, and that the truck had acquired a situs in North Carolina. The defendant Kennedy having alleged in his answer a change of situs of this truck, he has the burden to establish it. 78 C.J.S., Sales, § 578, page 305.

Webster's New International Dictionary defines situs as follows: "Situation or location; position; locality." This court in Universal C.I.T. Credit Corp. v. Walters, 230 N.C. 443, at page 446, 53 S.E.2d 520, at page 522, 10 A.L.R.2d 758 says "situated" as used in G.S. §§ 47-20 and 47-23 "means having a site, situation or location; permanently fixed; located. * * * `It connotes a more or less permanent location or situs, and the requirement of permanency must attach before tangible property which has been removed from the domicil of the owner will attain a situs elsewhere.'" See also Montague Bros., Inc., v. W. C. Shepherd Co., 231 N.C. 551, 58 S.E.2d 118 for a definition of "situated" as used in the same statutes. The word "situs" as used in G.S. § 44-38.1 and the word "situated" as used in G.S. §§ 47-20 and 47-23 have the same neaning.

Automobiles, unlike land, have no permanent location in one place. Their use and value depend on their mobility, and for that reason unprincipled people have frequent opportunities to cheat and defraud innocent third persons. To protect persons in this State who purchase for a valuable consideration personal property, covered by a chattel mortgage or a conditional sale agreement created in another state, when the property has been brought into this State from another state G.S. § 44-38.1 was enacted by the Legislature. The first sentence of sub-section (a) of the statute provides that "personal property acquires a situs in this State when it is brought into this State with the intent that it be permanently located in the State." Such intent is often difficult, if not impossible, to establish so as to make out a case for the jury. In order to facilitate the making out of a case for the jury, the second sentence of sub-section (a) was enacted, which reads: "The keeping of personal property in this State for two consecutive months is prima facie evidence that such property has acquired a situs in this State."

It is agreed in the stipulations between the plaintiff and Kennedy that Blake brought the truck into North Carolina on or about July 10, 1951, and sold it to *721 Kennedy. On September 3, 1951 Kennedy sold the truck to O'Daniel and on September 18, 1951 the plaintiff seized the truck under claim and delivery from O'Daniel. The truck has been in North Carolina since July 10, 1951. This agreement in the stipulations of the keeping of the truck in North Carolina for two consecutive months is prima facie evidence that such property has acquired a situs in this State.

Such prima facie evidence means, and means no more, than evidence sufficient to justify, but not to compel an inference that the truck has acquired a situs in North Carolina if the jury so find. It furnishes evidence to be weighed, but not necessarily to be accepted, by the jury. It simply carries the case to the jury for determination, and no more. McDaniel v. Atlantic Coast Line Ry., 190 N.C. 474, 130 S.E. 208; Star Mfg. Co. v. Atlantic Coast Line R. Co. 222 N.C. 330, 23 S.E.2d 32; Bennett v. Atlantic Coast Line R. Co., 232 N.C. 144, 59 S.E.2d 598.

From the evidence an inference can be drawn that the truck has not acquired a situs in North Carolina. The keeping of the truck in North Carolina for two consecutive months is prima facie evidence that the truck has acquired a situs in this State. That presents an issue of fact for a jury. The defendant Kennedy's Assignments of Errors Nos. One and Two as to the refusal of the court to nonsuit the plaintiff are overruled.

The defendant Kennedy assigns as Errors Nos. Three and Four the peremptory charge of the court to the jury that if they believed all the evidence, they should answer the issue Yes. A peremptory instruction to a jury is proper when the facts are admitted or established, and only one inference can be drawn therefrom. LaVecchia v. North Carolina Joint Stock Land Bank, 218 N.C. 35, 9 S.E.2d 489; Morris v. Tate, 230 N.C. 29, 51 S.E.2d 892. As different inferences can be drawn from the evidence, it was prejudicial error for the court to give a peremptory charge, and the defendant Kennedy's Assignments of Errors Nos. Three and Four are sustained.

G.S. § 44-38.1, sub-section (b) applies to this truck if a situs has been acquired; sub-section (c) applies if the truck has acquired no situs; sub-section (d) does not apply for it is agreed that the encumbrance on the truck "was duly recorded in the office of the Clerk of Court of Horry County, South Carolina, on June 12, 1951 at 9:37 o'clock a. m., as provided by the laws of the State of South Carolina."

The defendant Kennedy is entitled to a new trial, and it is so ordered.

New trial.