Annotate this Case

85 S.E.2d 319 (1955)

241 N.C. 389

Mrs. Lillian Ensley HART v. QUEEN CITY COACH COMPANY and Mrs. Robert Emerson Fultz and Dr. Robert Emerson Fultz.

No. 677.

Supreme Court of North Carolina.

January 14, 1955.

*320 Carpenter & Webb, Charles F. Coira, Jr., Charlotte, for Dr. and Mrs. Fultz, appellants.

Shearon Harris, Charlotte, Walser & Brinkley, Don A. Walser, Lexington, for plaintiff, appellee.

HIGGINS, Justice.

The critical question presented by this appeal is whether the record presents evidence to support the findings of Judge Gwyn that the appealing defendants were nonresidents of North Carolina on January 4, 1954, the date of the accident, and could be brought into court by service on the Commissioner of Motor Vehicles under G.S. § 1-105. If there is supporting evidence, we are bound by the findings. Bigham v. Foor, 201 N.C. 14, 158 S.E. 548.

The briefs in this case on the question of residence are full and have been prepared with much care. We have examined the many cases cited. They arise under many different statutes, each enacted to accomplish a definite purpose. It is to be expected, therefore, that the holdings as to what constitutes residence, domicile, etc., vary according to the purposes of the statutes.

What constitutes nonresidence under G.S. § 1-105 has not been the subject of direct judicial review. The nearest approach is Bigham v. Foor, supra. The broad purpose of the statute is to enable an injured resident of this State to bring back to answer for his tort a nonresident motorist who has inflicted injury while using the State highways and by the time suit can be instituted would otherwise be beyond this jurisdiction. It is contemplated that a resident of the State would ordinarily have enough of permanence and of fixed abode to keep him here and to permit personal service.

Residence has certainly in contemplation something of choice, of intention to remain permanently, or for a time sufficient to accomplish some undertaking requiring *321 more than a brief period. How does the serviceman fit into this picture? It must be remembered he moves under orders and not from choice. It is not for him to say when or where he goes, or how long he stays when he gets there. Often, the first intimation of reassignment is the delivery of his movement orders. Can it be said he acquires a residence under such circumstances?

The impermanence of a soldier's or sailor's assignment is illustrated by a provision of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. War Appendix, § 574, a wartime measure which provided: "* * * such person shall not be deemed * * * by reason of * * * compliance with military or naval orders * * * to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing * * * and personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, * * *."

Our view that members of the Armed Services stationed in this State under military or naval orders do not acquire residence here is supported by a recent decision of the Supreme Court of Arkansas, in the case of Central Manufacturers' Mut. Ins. Co. of Van Wert, Ohio v. Friedman, 213 Ark. 9, 209 S.W.2d 102, 103, 1 A.L.R.2d 557. In that case the court said, referring to an officer in the military service: "He did not intend to change his domicile or residence and had made no change unless his military service alone brought about such change. In the circumstances here, Benno's military service did not bring about any change in his domicile or residence." * *

"`In the Conflict of Laws, vol. 1, page 155, Professor Beale discusses the "domicile of a soldier or sailor" and the capacity of a sailor or soldier to acquire a "residence" notwithstanding his service in the Army or Navy, and it was there said: "It is of course possible for him (soldier) to provide a house of his own, off the Post, where his family may live, if this is allowed by superior officers; and it is possible for him to change his domicile by the proper proceedings while on leave. But he cannot acquire a domicile in an Army Post." * * "He is as able as anyone to acquire a new domicile so far as conditions allow. He cannot acquire it by any act done under military orders since, as has been seen, he has no choice but obedience. His orders would, so long as he remained in the Army, be enforced by all the powers of the state, and if he were permitted to leave the Army he could no longer remain in the Army quarters. He may, however, like anyone else, change his domicile by acquiring a residence outside an army post with the intention of making it his home." * * *

"`"The domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and intent concur."' * * * Here, there is no evidence that Benno acquired a residence outside of the Army Post with the intention of making it his home."

There is no suggestion in the record that either Dr. or Mrs. Fultz were in North Carolina for any purpose other than that contemplated by his naval service, or that they ever formed any intention to make North Carolina their place of residence. Dr. Fultz came to North Carolina under naval orders. He left under orders, and his entire stay here was incident to his naval orders. The evidence in the record is sufficient to support Judge Gwyn's findings of fact, and the findings are sufficient to sustain his conclusion that the appealing defendants were properly served with process by the delivery of same to the Commissioner of Motor Vehicles in compliance with G.S. § 1-105.

The judgment of the Superior Court of Davidson County is