Snyder v. Johnson

STOKES, Justice

(dissenting).

I regret that I am unable to agree with my colleagues, in the conclusions expressed by them in the opinion which they have handed down in this case. I have carefully read the entire statement of facts and, in my opinion, there is no evidence whatever to support the finding of the court below and affirmed by the majority of this court that appellant Cecil Snyder was, in any sense, a resident of Dallam County, either at the time this suit was filed or at any previous time. The conclusion of the majority to the contrary is based principally upon their interpretation of the testimony of appellant Sam Parker. No. question is raised as to Parker’s residence. He is alleged and admitted to be a resident of Wilbarger County and no claim is asserted that he .ever established his residence in Dallam County. The majority say Parker testified that he and Snyder were engaged as contractors in the construction of houses in Dallam County and at Stratford which is in Sherman County, in Texas, and at other places located in the States of Oklahoma and Kansas; that he said Snyder was at Dalhart most of the two years in which they were engaged in the construction of' the houses and that they were then constructing a building in Dallam County in which they owned an interest. They note also that appellee Johnson testified that appellant Snyder had resided in Dalhart, Dallam County, since June 10, 1948, and that appellee's wife stated that Snyder "had lived in Dallam County from the time he had commenced construction of her home and that he had remained and lived there from that time to May 25, 1950,’ the date of the trial.” The opinion of the majority further states that appellant, Cecil Snyder, testified in effect that he had lived in Dal-hart since that time (June, 1948,) except for trips to Wilbarger County. Upon this testimony the majority base their holding that the judgment of the court 'below had support in the evidence. It is not claimed by appellee, nor found by the majority, that any witness testified that appellant Snyder had ever established any sort of a legal residence in Dallam County, or to facts from which the conclusion could be drawn that he had done so. The contention of appellee and finding .of the majority are that Snyder lived in Dallam County during the time he was engaged in construction work in that vicinity.

As I understand the law, it is not a question of whére a man lived or existed, but one of residence. Of course he “lived” in Dallam County while engaged in building the houses there. He could not have performed the work if he had not “lived”. Dead men do not build houses. The question is one of “residence”. All of the testimony showed that Snyder was a married man; that he owned the home at Vernon in which he and his wife lived and maintained their residence in Wilbarger County; that he rendered and paid his taxes in Wil-barger' County; that he voted there and his automobile was registered there; that he and his wife had been married seventeen years and had lived together in Wilbarger County during all of that time. The houses that were constructed by Snyder and his partner were located in Dallam and Sherman Counties in Texas and in Oklahoma and Kansas. It was shown that, during the time he was engaged in constructing the houses-, Snyder had a room at a hotel in Dalhart part of the time and at a private residence part of the time but that, on week-ends and at other times when the work would slacken, he returned to'his wife and home at Vernon in Wilbarger County. His wife visited him for a day or two at Dalhart Upon only one occasion. He never *747owned or maintained any furniture in Dal-lam County nor made any preparations whatever for his wife to live with him there, nor did he own or rent a residence there nor make any other preparation to establish a residence there. The fact that he “lived at Dalhart” during the time he was engaged in constructing the houses is the only basis in the evidence for the action of the court below in overruling the plea of privilege and that alone could not make of him a resident of Dallam County. The mere fact that appellee, Johnson, used the word “resided” instead of “lived” added nothing to the strength of the evidence. The most that can be said of the testimony is that it showed he commuted back and forth between his home at Vernon, in Wil-barger County and Dalhart in Dallam County during the time he was engaged in building the houses in the vicinity of Dal-hart. It is settled law in this State that the term “resident” means one who dwells permanently or for a considerable time in a certain place; that he has a settled abode there for a time. Residence is largely a question of inténtion which is made to appear by the facts and circumstances of the case. No fact or circumstance indicating an intention of Snyder ever to establish his residence in Dallam County is pointed out by the majority opinion and none whatever is shown by the evidence. Marsden v. Troy, Tex.Civ.App., 189 S.W. 960; Bolton v. Alley, Tex.Civ.App., 25 S.W.2d 638; International & G. N. Ry. Co. v. Elder, 44 Tex.Civ.App. 605, 99 S.W. 856; Houston Printing Co. v. Tennant, 120 Tex. 539, 39 S.W.2d 1089; Ex parte Blumer, 27 Tex. 734.

In the majority opinion it is said that “The defendant, Cecil Snyder, testified in effect * * * that he had lived in Dal-hart since [June 1948] except for trips to Wilbarger County.” I do not find any testimony in the record to support that conclusion. Snyder testified positively that his "home had never been in Dallam County; that he had a room in a hotel part of the time; that he transacted business in Dal-hart; and that he returned to his home in Wilbarger County on week-ends and at other times. He said that he also -had a room at a private residence in Dalhart but that his home was in Wilbarger County. This testimony, in my opinion, does not support the statement that Snyder testified, in effect, that he had lived in Dalhart for .approximately two years except for trips to Wilbarger County. Even if it could be so construed, however, it could not mean anything more than that he was personally present at Dalhart during the time he was engaged in constructing the houses and mere personal presence at a place is not sufficient to establish one’s residence there.

Article 2958, Revised Civil Statutes, provides that the “residence” of a married man is where his wife resides. While that article is a portion of our election statutes, the rules for determining residence prescribed therein are followed in other civil cases. It is not contended by appellee nor anyone else that Mrs. Snyder ever established her residence in Dallam County, nor that either she or her husband, appellant Snyder, ever entertained the thought or contemplation that either of them would establish a residence there. Hennessey v. Campbell, Tex.Civ.App., 32 S.W.2d 390; Kelly v. Egan, Tex.Civ.App., 143 S.W. 1183; Devereaux v. Rowe, Tex.Civ.App., 293 S.W. 207; Fidelity & Deposit Co. of Maryland v. First National Bank of Teague, Tex.Civ.App., 113 S.W.2d 622.

It has been established by the decisions -of'the courts of this State that a man may have two residences, located in different counties, and that he may be sued in either county. In all the cases in which pleas, of privilege were overruled upon that ground, however, as far as I know or am able to ascertain, it was shown that each .of the defendants either; owned a home in each county or had established a residence there and lived with his family in each, county a portion of the time. Moreover, in each of them it was evident from the testimony that the defendant’s intention was to reside with, his family in the county where the suit was filed at least a portion of the time. Intermittent or temporary business journeys into localities other than one’s residence is not sufficient to show residence as against a defendant who files.a plea of *748privilege. Agey v. Red Star Supply Co., Tex.Civ.App., 113 S.W.2d 212; Joy v. Marshall Field & Co., Tex.Civ.App., 51 S.W.2d 731. It is the place of his residence, that' is, where he has a settled abode and, if á married man, as appellant Snyder is, where his wife abides for all or a portion'of the time that determines the county in which suit may be maintained against a defendant who files and urges a plea of privilege.

Article 1995, R.C.S., -provides that, with certain specified exceptions, no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile. It is now established that the word “domicile” has the same meaning in the statute as “residence.” The privilege.to be sued in the county of one’s residence is a valuable right. It should not be destroyed upon a doubtful or strained construction of the testimony nor of any exceptional provision contained in the law. 'To deprive a defendant of the right to be sued in the county of his residence, the testimony must be clear and satisfactory that he has a residence in the county where, the suit is brought or the case against him must be dearly brought within one of the exceptions provided by the statute. Lasater v. Waits, 95 Tex. 553, 68 S.W. 500; Browne v. Heid Bros., Tex.Civ.App., 12 S.W.2d 587; Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896; Michel v. Farmers State Bank, Tex.Civ.App., 95 S.W.2d 1359.

As I view the testimony in this case, the question of whether or not appellant Snyder was a resident of Dallam County at the time this suit was instituted, or at any other time, is not even doubtful. There is not one line of testimony which establishes a single element of residence in Dallam County, as required by the statute and many decisions of our courts. The nearest any of the testimony came to establishing his residence there was that some of the witnesses testified he “lived” there while he was engaged in constructing the houses mentioned. The law does not provide that an inhabitant of this state may be sued at the place where he' happens to be existing, or “living” when the suit is 'brought. It clearly provides that ño inhabitánt shall be sued out of the county in which he has his residence or domicile except in certain cases and none of the exceptions is even claimed to exist as far as appellant Snyder is concerned. Only a transient person may be sued in any county where he may be found and Snyder was not a transient person. He was'an inhabitant of this State.

Appellee contends that venue was properly laid in Dallam County under Subdivision 9 of Article 1995, which provides tha.t a suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed. He contends the evidence in this case shows that -appellants committed the crime of- theft 'in connection with his payment to them of the contract-price for the work they had performed on his home. The undisputed testimony in reference to ..that-phase of the case was that appellee was dissatisfied with the manner in which appellants were doing the work. A number of controversies had -arisen between them while it was being performed. Before the building was completed, appellee proposed to appellants that he would pay them what he owed them at that time if they would remove their equipment from his premises by the following Saturday and the contract he had with them would thus be abrogated as to any further construction work appellants had agreed to perform. Appellants told appellee that they did not know how much he owed them and asked him for his opinion of it. He had before him at the time some figures he had made and, without apparent hesitation, he told them he had figured it to be $2700. Appellants had no figures and apparently had kept no books or account of the work they had performed or material they had furnished. Appellant Snyder hesitated to accept appellee’s check for the $2700, stating to appellee that he, Snyder, did not like to do business that way; 'that appellee was mad and he, Snyder, thought they should wait awhile to settle the matter. Parker suggested that they accept appellee’s check and proposition to terminate their part of the construction contract and it was then and there agreed by all of them that the matter would be settled *749in the manner suggested and proposed by appellee. At sometime during the conversation or shortly afterwards, Parker said to his partner Snyder, substantially; that, “under this, settlement, the tile will not cost us anything”. This statement was made in the presence of appellee and it is the only evidence offered by appellee or shown in the record to support appellee’s contention that appellants knew they were being paid more than they were entitled to receive from ap-pellee under the original contract and it could not amount to more than Parker’s approval of the settlement offered to them by appellee and Parker’s expression of satisfaction with it. The charge of theft is based upon the allegation of appellee that appellants knew at the time that appellee was paying them more than they were entitled to receive. The authorities cited by appellee in support of his contention are the cases of Fulcher v. State, 32 Tex.Cr.R. 621, 25 S.W. 625 and Hedge v. State, 89 Tex.Cr.R. 236, 229 S.W. 862, 14 A.L.R. 889. The facts in the Fulcher case were that Fulcher presented to the bank a check upon which the cashier, by mistake, paid him $500 more than the check called for. The Court of Criminal Appeals held that if, at the time thé appellant received the money, he farmed the criminal design to appropriate it to his own use, and did so appropriate it, it would be theft. In the Hedge case, it •was shown that one Watkins owed Hedge $636.79 and that, by mistake of Watkins, he delivered to Hedge a check for $1,061, payable to Hedge, and that it was for an amount of $424.21 more than was due. The excess was appropriated by Hedge and the court held that, if Hedge received the check in question, knowing at the time that it represented a larger amount than was due him, and intended at the time of its reception to appropriate -to his own use such amount as might be in excess of what was his, and did so appropriate it, his action would be theft.

The majority does not discuss this contention in its opinion but, in our consultations, it has appeared that .at'least one member of the court is in doubt about it and that the action of appellants upon the occasion when appellee paid them the $2700 might constitute theft of the amount1 which appel-lee paid them over'and above the original contract price for which théy agreed to construct, his building. ’ I am unable to see a single element of theft in that transaction. It was a new contract and1 constituted an accord and satisfaction. The only mistake, if any, that is shown by the evidence, and the only one claimed by appellee, is that he paid them more money than the original contract called for. He said that, at the time he paid it, he had overlooked a payment of $2000 he had theretofore made to them. There is no contention, or even a suggestion, that a mutual mistake was made or that appellants knew, or had any idea of, the amount appellee owed them up to that time, nor that they knew or realized appellee had overlooked an alleged payment of $2000 of which no account was being taken in the proposed settlement. The statement of Parker to his partner Snyder, in the presence of appellee, that, under the settlement they had just made with appel-lee, the tile used in the building would not cost them anything, is far from establishing appellants’’ knowledge of the fact that appellee was laboring under a mistake when he .offered them the settlement under which he paid them $2700. They complied with the contract of settlement, removed their machinery and equipment from the premises, and nothing further was heard of the matter for several months. ’Snyder’s suggestion that appellee was mad at the time and that they Wait until ’ the parties cooled off showed clearly his good faith and honesty in the matter of accepting the proffered settlement. I do not think it requires the citation of authorites to establish .the absence of any element of the crime of theft in this transaction.- It was nothing more than an accord and satisfaction. If appellee made a mistake in offering to pay them $2700, it was his mistake, riot a mutual one and, since it is not shown the appellants knew anything about it, their act of agreeing to the settlement and accepting appellee’s check could not constitute theft. In my opinion it follows that the district court of Dallam County did not acquire venue of this case under Subdivision 9 of Article 1995, Revised Civil Statutes.

*750In my opinion the judgment of the court below, overruling appellants’ plea of privilege, was wholly without evidence to support it and,- instead of being affirmed, the judgment should be reversed and the cause ordered transferred to the district court of Wilbarger County.