finding that appellant’s actions were consistent with an |i:iimplied agreement between the parties that depositions would not be used as evidence at trial; thus, appellant had waived the literal wording of Ark. R. Civ. P. 32(a)(3)
How later courts described this case
- finding that appellant’s actions were consistent with an |i:iimplied agreement between the parties that depositions would not be used as evidence at trial; thus, appellant had waived the literal wording of Ark. R. Civ. P. 32(a)(3)
- finding that a case had not been expressly or implicitly overruled because, despite an intervening and apparently contradictory decision, the court thereafter cited the earlier case with approval and followed its holding
- assignments of error that are unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that they are well taken
- distinguishing residence and domicile for purposes of venue statute
Written by the judges who cited it.
The opinion
John I. Purtle, Justice, dissenting. “Venue” is the issue in this case. At the time of her injury, the appellant was, in my opinion, a resident of Lafayette County, Arkansas. Her testimony concerning her residence was as follows:
I became a citizen and resident of Lewisville, Arkansas in August of 1970.1 lived with my mother,. . .and an older brother. I finished high school there in May of 1979. In September of 19791 became a student at the University of Arkansas at Fayetteville. In doing this I packed some bags and boxes and other incidentals and put them in my car and drove to Fayetteville where I lived in Fulbright Hall, a women’s dormitory with a roommate.
In Lewisville I had my own room at home and when I would go to school I would take only my necessities and leave behind in my room and in my home everything else that I owned. Also in Lewisville I had a post office box at all times where I received my mail; I was a registered voter there and voted several times including one election during May of 1982; also had a bank account in my name in Lewisville which remained active for approximately six months or so after my marriage; my car was registered in Lafayette County at all times and still is up to this date; I had a membership in the First United Methodist Church in Lewisville at all times up until October of 1983 and I attended church in Lewisville until the latter part of 1982.
I agree with the majority that this cause of action is controlled by Ark. Code Ann. § 16-60-112 (a) (1987), which allows the action to be filed in “the county where the person injured or killed resided at the time of injury.” In Burbridge v. Redman, 211 Ark. 236 , 200 S.W.2d 492 (1947), this court held that, for purposes of venue, a party cannot maintain an action in a county where he temporarily works and occupies living quarters, when his wife and children live in another county. This opinion directly contradicts today’s holding by the majority. Further, Burbridge has not been overruled.
The majority relies heavily on the case of Norton v. Burkins, 203 Ark. 586 , 157 S.W.2d 765 (1942), although it is not factually similar to the present case. In Norton, the plaintiff had moved his family and property to Ouachita County where they lived for some time prior to his being injured in an accident in that county. His child was enrolled in school in Ouachita County. The plaintiff in Norton brought suit for personal injuries in.Cleveland County, from which he had moved a year or two before. He claimed Cleveland County as his legal domicile and asserted that he intended ultimately to return there to live. This court held that the facts of the case established Ouachita County as his residence. The facts in Norton and those in the present case are diametrically opposed.
The factual circumstances of this case in the light of our prior decisions, make it clear that the appellant was legally a resident of Lafayette County at the time of her injury. Therefore, the trial court erred in ruling that suit was not filed in the proper county.
The case should be reversed and remanded.