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Opinion of the Court.
Company, a corporation created under the laws of Kentucky and Tennessee. Its object was to recover damages alleged to have been sustained by the plaintiff on the 30th of November, 1882, in the State of Tennessee, in consequence of the careless, negligent and wrongful conduct of the defendant and its servants, while he was a passenger upon one of its trains. Upon the petition of the company the action was removed into the Circuit Court of the United States for the Eastern District of New York, where, after the evidence was concluded, the jury, under the direction of the court, returned a verdict for the defendant. This direction was given because, in the opinion of that court, the plaintiff's cause of action was barred by the statutes of limitation of New York.
The statutes here referred to are in these words :
“The following actions must be commenced within the following periods, after the cause of action has accrued. Within three years:
: An action to recover damages for a personal injury, resulting from negligence.' N. Y. Code of Civil Procedure, SS 380, 383.
6 Where a cause of action which does not involve the title to, or possession of, real property within the State, accrues against a person who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative, after the expiration of the time limited by the laws of his residence for bringing a like action. except by a resident of the State, and in one of the following cases:
“1. Where the cause of action originally accrued in. favor of a resident of the State.
“2. Where, before the expiration of the time so limited, the person, in whose favor it originally accrued, was, or became, a resident of the State ; or the cause of action was assigned to, and thereafter continuously owned by, a resident of the State." 1b. § 390.
A motion for new trial having been overruled, a judgment was rendered for the company. That judgment is here for review, the only error assigned being the court's instruction to find for the defendant.
Opinion of the Court.
It was agreed that at the trial the plaintiff gave testimony tending to show the following facts: He lived in Harlem, New York, when a boy of fourteen years of age, married in
, Brooklyn, removed from that city to Michigan, from the latter State to Illinois, and from Illinois to St. Louis, Missouri, where he bad resided for about one year prior to the accident. At the time of the accident he was a travelling salesman for an agent of the Michigan Salt Association located in St. Louis, and when the trial took place, was engaged in that capacity. When injured, he resided in St. Louis, with his wife and children. In August, 1883, he "sent his wife and children to Brooklyn, New York, where they took up their residence and commenced to keep house, and where they have resided ever since August, 1883, and do now reside.” The plaintiff himself did not go to Brooklyn with his family in August, 1883, nor did he join them there until December 31, 1883, or January 1, 1884. “He remained with his family in Brooklyn for about three months, when he again went to St. Louis, and from there went travelling for said agency as said salesman." He “again joined his wife and children the next December, 1884, and remained with them some three months, when he again went out on the road.” He joined his family in October, 1885, and was with them at the time of the trial. He lived with them when at home, and always lived with his wife since their marriage, except when absent on business. The attorney for the defendant addressed the plaintiff at his place of business in St. Louis, up to December 28, 1883, on which day the latter notified him by letter of his change of address to Brooklyn, for which place he was in the act of starting to join his family.
Upon the issue as to the residence of her husband, Mrs. Penfield's evidence was, that they had lived together constantly for about twenty-two years, and she was always with him except when he was travelling. Having stated that at the time of the accident, and during the sickness of her husband, resulting from the injuries received by him, they resided at St. Louis, her examination continued: “Q. How long did you continue to live there yourself after this sickness? A. Until · the next August. Q. What year was that? A. 1883. Q. In
Opinion of the Court.
August, 1883, what did you do? A. Came here to Brooklyn; hired a house and went to house-keeping; moved all my things I wished to retain, and have lived here ever since with my children. Q. What about your furniture? A. Part I sold in St. Louis and part I brought here. Q. And have you been residing here ever since? A. Yes, sir. Q Your husband's place of abode is here with you in your house? A. Yes, sir. Q. At the time you removed from St. Louis to Brooklyn will you state, if you know, the reason why your husband did not come on with you at that time?" This question was objected to as immaterial and irrelevant, and was not answered.
As the railroad company is a corporation of Tennessee, where the injury occurred, and as the plaintiff was not a resident of New York when the cause of action originally accrued to him, the suit was barred by section 390 unless he became a resident of the latter State before the expiration of the period limited by the laws of Tennessee for the commencement of actions like this, that is, before the expiration of one year from November 30, 1882. The contention of the plaintiff is that, although he was not in the State of New York for some years prior to December, 1883, he became, within the meaning of the statute, a resident of that State, when, in August, 1883, he sent his family to the city of Brooklyn. We are not aware of any determination of this precise question by the highest court of New York. But there are decisions of that court construing statutes, other than statutes of limitation, which contain the words "resident" and "residence." Those decisions may throw some light upon the present case.
The earliest of those cases, to which our attention has been called, is In re Thompson, 1 Wend. 43, 45. It arose under a statute, 1 Rev. Laws N. Y. (1813) c. 49, p. 157, the 23d section of which provided "that the estate, real and personal, of every debtor who resides out of this State, and is indebted within it, shall be liable to be attached and sold for the payment of his debts, in like manner, in all respects, as nearly as may be, as the estates of debtors residing within this State." Chief Justice Savage, delivering the opinion of the court, said that the object of the statute was to authorize creditors to prosecute
Opinion of the Court.
for their debts when their debtors were abroad; and whether their absence from the State was permanent or temporary, whether voluntary or involuntary, the reason for giving this remedy to the creditor was the same. He said the question was “where was his actual residence, not his domicil. The act is intended to give a remedy to creditors, whose debtors cannot be served with process. If the debtor absconds or secretes himself, then an attachment issues. If he notoriously resides abroad, then the attachment issues. But if he goes openly to another State or country, and remains there doing business, but intending to return when his convenience will permit, he is not, as his counsel contends, an absent debtor, and his property cannot be touched. He
He may become a bankrupt abroad, as has Alexander Thompson ; his property may be taken by his partners, and used by them, or transferred to his foreign creditors, as is attempted in this case ; and the creditor may stand by and acknowledge and regret the insufficiency of our laws, but the property cannot be touched. Surely the legislature never intended such a state of things.
The reason why this remedy is given against the property of debtors resident abroad is equally applicable whether the debtor is absent permanently or temporarily. No length of residence, without the intention of remaining, constitutes domicil. A debtor, therefore, by residing abroad, without declaring an intention to remain, might prevent his creditors from ever collecting their debts. In my judgment, the present case comes not only within the spirit of the act, but also within its terms.”
In Frost v. Brisbin, 19 Wend. 11, 14, the court was required to determine the meaning of the word “resident,” in the act of 1831, Statutes 1831, p. 396, providing that no person should be arrested on civil process in suits brought upon contracts, express or implied, except in cases where the defendant “shall not have been a resident of this State for at least one month previous to the commencement of a suit against him.”
In that case it appeared that Brisbin, a citizen and resident of New York, purchased a stock of goods, took them to Milwaukee, and established himself in business in the latter city,
Opinion of the Court.
leaving his wife and child to board at his former residence in New York. There was evidence tending to show that he went to Milwaukee with intent to make it his permanent residence. But there was, also, evidence tending to show that he had no fixed purpose, when he went to that city, of making it his permanent abode, unless he was successful in business, and that when arrested he had the purpose - not having been thus
successful -- to close up his business and return to his former residence, though without any certain plans as to his future course.
The court, speaking by Chief Justice Nelson, said that if the case turned upon the defendant's formed intention and purpose of mind, and not upon the fact of actual residence, the law was for him. But upon a review of former decisions, construing statutes regulating the rights and remedies of creditor and debtor, he said: “The cases cited above establish that the transient visit of a person for a time at a place, does not make him a resident while there; that something more is necessary to entitle him to that character. There must be a settled, fixed abode, an intention to remain permanently at least for a time, for business or other purposes, to constitute a residence within the legal meaning of that term.
One of these cases expressly, and all of them virtually, decide that actual residence, without regard to the domicil of the defendant, was within the contemplation of the statutes. Whether, therefore, the defendant had so established himself at Milwaukee as to work a change of his domicil or not, is immaterial; for if we concede he has not, he may still be a resident there. The domicil of a citizen may be in one State or Territory, and his actual residence in another.” After observing that upon the facts it must be assumed that the defendant commenced an actual and permanent residence in Milwaukee in the spring of 1836, but that since that date he had resolved to close his business there as soon as it could be conveniently done, and return to his former residence, the court said: “Has this change of intention worked a change of residence for this is the most that can be pretended. If our exposition of the meaning of the term in the statute is correct, it clearly