Summary
In Davis v. Holt, 105 Ga. App. 125 (123 S.E.2d 686), plaintiff's suit for personal injuries suffered in an auto collision was filed in Walker Superior Court and defendant was served under the Nonresident Motorists Act.
Summary of this case from Webb v. OliverOpinion
39079.
DECIDED NOVEMBER 8, 1961. REHEARING DENIED DECEMBER 1 AND DECEMBER 13, 1961.
Action for damages. Walker Superior Court. Before Judge Fariss.
Wade Leonard, for plaintiff in error.
Hurt, Gaines, Baird, Peek Peabody, Shaw Shaw, Burton Brown, contra.
1. ( a) A temporary sojourn in another State will not make a resident of this State subject to service under the Nonresident Motorists Act. Code Ann. Ch. 68-8.
( b) The Nonresident Motorists Act authorizing service upon nonresidents by necessary implication precludes service under its terms upon one who is a resident of this State.
( c) There being no evidence inconsistent or conflicting with the defendant's averred intention that his residence is in Fulton County, Georgia, the trial court did not err in granting the defendant's motion for summary judgment.
2. Where the defendant's motion for summary judgment included an averment of facts which, if uncontroverted, would have allowed the trial court to grant the motion for summary judgment, a motion to strike the motion for summary judgment was properly overruled.
3. The statements, admissions, and records of the defendant are not sufficient here to estop him to deny that he was a resident of the State of Alabama.
DECIDED NOVEMBER 8, 1961 — REHEARING DENIED DECEMBER 1 AND DECEMBER 13, 1961.
The plaintiff's action was brought for personal injuries arising out of an automobile accident. The defendant was served with process under the Nonresident Motorists Act, Code Ann. Ch. 68-8. The defendant filed a plea to the jurisdiction, urging that the service under this act was improper, since the defendant was not a nonresident and had not been at the time the suit was filed or service made, and was not at the time of the accident a nonresident of the State of Georgia, but was, in fact, a resident of Fulton County, Ga.; that he was temporarily employed in Guntersville, Ala., but at no time did he change his residence to Alabama, since he was at all times relevant to the suit a resident of Fulton County, Ga. For these reasons, it is contended, the Superior Court of Walker County, Ga., had no jurisdiction.
The defendant also moved the court to enter a summary judgment in his favor under Code Ann. Ch. 110-12. This motion was based on the affidavit of the defendant attached to the motion which in its relevant parts reads as follows: "Georgia, Fulton County. The defendant states the following: 1. That he is Albert H. Holt. 2. That he is a resident and citizen of Fulton County, Georgia. 3. That at no time has he been a resident of the State of Alabama. 4. That at all times pertinent to this suit, at the time of the accident, and at the time of service, he maintained a residency in Fulton County, Georgia. 5. That at the time of the accident involved in this suit, he was on a temporary sojourn in Guntersville, Alabama, but at no time changed his residency to that state. /s/ Albert H. Holt. . ."
The defendant filed additional affidavits averring that he had bought a motel in Guntersville, Ala., for the purpose of improving and reselling it; that he resides in Fulton County, Ga., and has so resided with his wife since 1950; that both he and his wife are now and have been registered voters in Fulton County since 1950; that he does not now, nor at any time has he ever held an Alabama driver's license, but does hold a Georgia veteran's license, a photostatic copy of which is included.
The defendant introduced an affidavit from the Tax Commissioner and Registrar of Fulton County, Georgia, certifying that an attached certificate by a third party was true and correct according to the voting records of Fulton County, Ga. This certificate showed that the defendant qualified in the office of the Registrar of Fulton County, Georgia, for voting purposes in October of 1952, and indicated that he voted twice in 1953, that his registration was canceled and later continued in 1956, that he voted twice in 1956, once in 1957, and once in 1960.
Another affidavit in support of the defendant's motion was that of Mrs. Lucille P. Holt, to the effect that she is the wife of the defendant; that they were married in 1950 in Atlanta, Ga., and were still married; that they presently reside in Atlanta, Fulton County, Ga.; that from 1958 to the fall of 1960 they resided at a designated address in Fulton County, Ga.; that in 1958 her husband purchased a motel in Guntersville, Ala., in the course of his business; that he has operated it since its purchase but continues to live with her in Fulton County; that he receives his personal mail in Atlanta but his business mail in Guntersville, Ala.; that even during the "summer rush season" he divided his time during the week between Guntersville, Ala., and Atlanta, Ga., and spends most of the week ends in Atlanta; and that during the winter most of his time is spent in Atlanta, Ga.
Still another affidavit of the defendant was similar in part to that of his wife, but was supplementary in that he averred that he had been engaged in construction and real-estate business in Fulton County, Ga., for 22 years; that he bought the motel in Guntersville, Ala., in December, 1958, as a speculation; that in 1959 the highway on which it was located was closed because of cave-ins and rock slides, and the highway remains closed; that because of the closure he has been unable to sell it and, therefore, had maintained it open under his own management; that due to his active management of the motel he spends most week days on its premises in Guntersville, Ala., during the summer, but commutes to his Atlanta residence on week ends; that during the winter, which is the slack season, he spends most of his time, both week ends and week days, at his Atlanta address; that he always considered his residence and home to be in Fulton County, Ga.; that he never lived at the other designated addresses with intention not to return; and that he never at any time intended to move his residence to the motel in Guntersville.
There was also in the record a certification of the Chief of the Driver's License Division of the State of Alabama to the effect that a search of the files failed to reveal a driver's application under the name of the defendant at Guntersville, Ala.
The plaintiff made an oral motion to strike defendant's motion for summary judgment, which was overruled.
The plaintiff filed counter-affidavits on the issue of the defendant's residence as follows: (a) An affidavit from the Secretary of the State Department of Revenue of Alabama certifying that photostats attached were true copies of motor vehicle licenses issued in the name of the defendant in Guntersville, Marshall County, Ala. These registered a 1956 Cadillac automobile for Alabama license tags in the name of the defendant at that location for the years 1959, 1960, and 1961. (b) An affidavit of the Chief of Police of Fort Oglethorpe, Ga., attesting that he investigated the automobile accident between the parties, and that the defendant informed the deponent that he was the operator and owner of the 1956 Cadillac automobile which was involved in the accident; that the automobile had a 1959 license plate bearing the number shown in the photostat as being the 1959 registration of the defendant's car in Marshall County, Ala.; that the defendant showed the deponent a Georgia driver's license and also an Alabama driver's license, both issued to the defendant, and that the Alabama driver's license showed the defendant's address as being a named motel in Guntersville, Alabama; that the defendant stated to the deponent that he was at that time living at the motel in Guntersville, Alabama; and that he invited the deponent to visit him at that place at any time. (c) An affidavit of one of plaintiff's counsel to the effect that counsel wrote a letter on May 2, 1960, to the defendant, addressed to him at the motel in Guntersville, Ala.; that about a week later counsel received a telephone call from an attorney in Atlanta advising that the Atlanta attorney represented the defendant and "if deponent had any further negotiation about the claim for him to contact him at the address herein shown." (d) A certificate of the Secretary of State of Ala. that the pages attached contained true, accurate, and literal copies of certain acts of the Alabama Legislature dealing with licensing of drivers and vehicles, and exemptions. The first of these acts exempted any person in the armed forces on November 15, 1945, who held a designated driver's license who should be exempt from the requirement that he purchase a driver's license from September 30, 1945, during the continuation of his or her services in the armed forces. The second act in the record related also to drivers' licenses, amending certain sections of the Alabama Code, by basing the licensing period upon the biennial birth dates of the licensees. The third act was one which exempted certain designated persons from obtaining an Alabama driver's license, including "a non-resident who is at least sixteen years of age and who has in his immediate possession a valid driver's license issued in his home state or county." The fourth act was one containing provisions of the Alabama motor vehicle law exempting from purchasing a license tag motor vehicles owned by nonresidents and not used for hire for a period of 30 days from the date of entry, and certain other vehicles used for commercial purposes under designated conditions. The fifth act, passed in 1955, prohibited the registration of certain motor vehicles, trucks, and similar vehicles used for commercial purposes and owned by nonresidents, except as otherwise provided. The sixth act provided for a sliding scale for licensing motor vehicles based on weight and also upon the time of purchase or entry into the State, allowing a period of four days within which to purchase the tag. Other statutes included are not relevant.
After the presentation of evidence and argument of counsel, the defendant's motion for summary judgment was granted in his favor. The plaintiff excepted to the order of the court overruling his motion to strike the motion for summary judgment, and to the order and judgment of the court sustaining the motion for summary judgment in favor of the defendant.
1. (a) In his brief the plaintiff contends that the evidence conclusively shows that the defendant was at the time of service of process a resident of the State of Alabama. The defendant, on the other hand, strenuously urges that under the uncontradicted facts he was domiciled in Georgia. This conflict of views as to the place of residence of the defendant presents the first question for our determination.
In Avery v. Bower, 170 Ga. 202, 204, 206 ( 152 S.E. 239), it is stated that "`Residence' and `domicile' are not synonymous and convertible terms. A man may have several residences, but only one place of domicile. There must be a concurrence of actual residence and the intention to remain, to acquire a domicile. . . `Domicile,' unlike `residence,' means a permanent place of abode . . . whereas `residence' is not necessarily permanent, and may be at some place other than the place of domicile."
As one noted authority states it, ". . . The difference between three conceptions, that of sojourn, residence, and domicil (not now including domicil by operation of law) is one purely of intention. To become a sojourner, no intention whatever is necessary, merely the fact of personal existence in the place. For residence there is an intention to live in the place for the time being. For the establishment of domicil the intention must be not merely to live in the place but to make a home there." 1 Beale on Conflict of Laws, § 10.3, p. 109.
(b) The jurisdictional statute applicable here specifically authorizes service upon nonresidents, and by necessary implication precludes service under its terms on one who is a resident of this State. Code Ann. Ch. 68-8.
The plaintiff contends that the admission in the defendant's affidavit that he was "on a temporary sojourn in Guntersville, Alabama," shows that he was at the time a resident of that State and, therefore, the statute applies. We do not agree. The term, "sojourn," as a noun, is defined as meaning a temporary stay or a temporary residence, as that of a traveler in a foreign land, a sojourner. 81 C.J.S., p. 385. It has been stated in other jurisdictions as being not synonymous with residence and as being synonymous with residence. Compare Zimmerman v. Zimmerman, 175 Ore. 585 ( 155 P.2d 293), with In re Gahn's Will, 110 Misc. Rep. 96 ( 180 N. Y. Supp. 262). See also Evans v. Brooks, 93 Ga. App. 352, 357 ( 91 S.E.2d 799). We are constrained to the belief that the better view is that a sojourn is not the equivalent of residence. It necessarily follows that an averment acknowledging that the affiant at the time of service was on a "temporary sojourn" in another State may not be taken as an admission that the proponent is in the eyes of the law a resident of that State.
(c) Under the statutory provisions for summary judgment, the judgment sought may be rendered only where the pleadings, depositions, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, but any party has the right to trial by jury where there are substantial issues of fact to be determined. Code Ann. § 110-1203. In no sense does the statute authorize the courts to sit as both judge and jury, for where there is a genuine issue as to any material fact, a trial in the normal process is as absolutely essential today as it was prior to the enactment of the summary judgment procedure. General Gas Corp. v. Carn, 103 Ga. App. 542 (1), 545 ( 120 S.E.2d 156). See also generally, Scales v. Peevy, 103 Ga. App. 42 ( 118 S.E.2d 193); and Hall, The Effective Use of Motions for Summary Judgment in Georgia, XXIII Georgia Bar Journal 439, et seq.
In the record before us there is no genuine issue nor any conflicting evidence relating to the residence of the defendant. The evidence offered by the plaintiff on this issue was in substance (1) that the defendant had registered his motor vehicle in Alabama; (2) the affidavit of the investigating officer to the effect that the defendant had both Georgia and Alabama driver's licenses; (3) that the defendant stated to the investigating officer that he was at that time living at the motel in Guntersville, Ala.; (4) the evidence by affidavit of plaintiff's counsel that the letter addressed to the defendant at the motel in Guntersville produced a reply from the Atlanta attorney a week later; (5) together with certain Alabama statutes shown in the detailed factual summation preceding this opinion. None of it presented any facts inconsistent with the defendant's averred intention that his residence is in Fulton County, Ga. The most that can be said of it is that it showed that the defendant was temporarily in Alabama. All of the evidence combined clearly demands recognition of the factual actuality that the defendant's residence is in Fulton County, Ga. The trial court properly granted the defendant's motion for summary judgment.
2. The other exception of the plaintiff was to the order and judgment of the court overruling the plaintiff's motion to strike the defendant's motion for summary judgment.
The bill of exceptions recites that on the 5th day of July, 1961, the motion for summary judgment came on for final hearing before the trial judge, and at that time, and before consideration of the evidence by the court in this case, counsel for plaintiff orally moved the court to strike defendant's motion for summary judgment on the grounds that the affidavit attached to the motion shows and admits that the defendant was subject to service of process through the Secretary of State, since it is shown and admitted by the defendant in the affidavit that he was "on a temporary sojourn in Guntersville, Alabama," at the time of the accident, and further since the defendant was served through the Secretary of State when he was present in Alabama, this is prima facie evidence that he was then and there a resident of the State of Alabama.
Under Code Ann. § 110-1201 a party seeking to recover upon a cause of action, cross-action, setoff, or recoupment, or to obtain a declaratory judgment may, at any time after the expiration of 30 days from the date of service of the petition or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. Here, the plaintiff's motion to strike the defendant's motion for summary judgment was properly denied, for the reasons that (1) under the ruling in division 1 of this opinion a temporary sojourn is not the equivalent of residence for purpose of service; (2) the mere fact that the defendant was served through the Secretary of State while present in Alabama, standing alone, does not prove, as a matter of law, residence there; and (3) the defendant's motion for summary judgment on its face presented facts which, if uncontroverted, would have allowed the trial court to grant the motion for summary judgment in favor of the defendant.
3. The plaintiff further contends that the defendant, by his statements, admissions, and records, is estopped to deny that he was a resident of the State of Alabama.
The holding in division 1 of this opinion is sufficiently broad in its concept to include the view that where one resides in this State, he is not subject to service under the Nonresident Motorists Act, even though he may be a resident of another State also. Even when considered in the light most favorable to the plaintiff, the representations made by the defendant merely point to the possibility that he may have had two residences. Under these circumstances, the plaintiff cannot be said to have been ignorant of the truth of the defendant's Georgia residence.
"In order to constitute estoppel by conduct, there must concur, first, a false representation or concealment of facts; second, it must be within the knowledge of the party making the one or concealing the other; third, the person affected thereby must be ignorant of the truth; fourth, the person seeking to influence the conduct of the other must act intentionally for that purpose; and, fifth, persons complaining shall have been induced to act by reason of such conduct of the other." Calhoun v. Williamson, 76 Ga. App. 91, 93 ( 45 S.E.2d 87); Jones v. Tri-State Electric Co-operative, 212 Ga. 577, 582 ( 94 S.E.2d 497). At least the fourth of these elements is missing in this case, since there is nothing to show that the conduct of the defendant relied upon to work an estoppel was done intentionally by the defendant to influence the conduct of the plaintiff in filing an action against him. This contention has no merit.
The trial court did not err in granting the defendant's motion for summary judgment and in overruling the plaintiff's motion to strike the defendant's motion for summary judgment.
Judgment affirmed. Felton, C. J., and Hall, J., concur.