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Gallagher v. Philadelphia Transp. Co.

decided: December 4, 1950.


Author: Hastie

Before BIGGS, Chief Judge, and KALODNER and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

The issue in this case is whether the plaintiff is a citizen of Pennsylvania or Oregon, within the meaning of Section 1332 of the Judicial Code, 62 Stat. 930 (1949), 28 U.S.C.A. § 1332. If she is a citizen of Pennsylvania, there is no diversity of citizenship between her and the defendant, a Pennsylvania corporation, and hence, there is no federal jurisdiction over the controversy.

The action is for personal injuries alleged to have been sustained by the plaintiff as a result of the negligence of the defendant, Philadelphia Transportation Company.

At the termination of the plaintiff's evidence, and again at the close of all the evidence, the defendant moved for a directed verdict on the ground that the court lacked jurisdiction. The court reserved decision, and the jury rendered a verdict in favor of the plaintiff, on which judgment was entered. Defendant then filed a motion for judgment in accordance with Rule 50(b). Fed.Rules Civ.Proc., Rule 50(b), 28 U.S.C.A. On this motion, the court made findings of fact, and concluded that there was no diversity of citizenship. It therefore ordered that the judgment for the plaintiff be set aside and the action dismissed on the ground that it had no jurisdiction. From this order, the plaintiff appeals.

The only evidence offered by either party on the issue of the citizenship of the plaintiff is the plaintiff's own oral testimony, on pretrial depositions and at trial, and an affidavit attested by her, prepared and filed subsequent to trial.

This evidence shows that plaintiff, her husband, and two children by a former marriage came to Philadelphia from California in 1944. Their intention was "to take up life anew in a new area". Plaintiff and her husband took permanent positions. They lived in Philadelphia continuously thereafter until December 1947. In the early part of 1946, plaintiff's husband was convicted of a felony and sentenced to prison for five to ten years. He is still incarcerated in a Pennsylvania prison.

Plaintiff had lived in Oregon during childhood. In October 1946, she had her brother take her two children to his home in Forest Grove, Oregon. Plaintiff testified that at that time, she intended to go to Oregon and make her home there as soon as it was determined whether a parole petition could be filed for her husband. In the meantime, she remained in Philadelphia working in a restaurant and living in a rented room.

On July 8, 1947, plaintiff was injured in the accident which gave rise to this action. She was hospitalized for seven weeks. After her release, she stayed in various furnished rooms in Philadelphia rooming houses.

In December 1947, she went to Forest Grove, Oregon. According to her testimony, her intention in removing to Oregon was to make her home there with her children, in the home of her brother, his wife, and their child. She has lived in that home in Oregon ever since, with the exception of a period of time from February to September 1948, when it was necessary for her to take her younger child to Los Angeles, California for hospital treatment in that city.

This suit was filed July 9, 1948. The plaintiff alleged in her complaint that she was a citizen of Oregon. She has at no time returned to Pennsylvania except for the purpose of the trial of her case. She left no business interests or property in Pennsylvania. She retained no voting residence there.She has not even visited her husband at his place of incarceration in Pennsylvania since her removal to Oregon in 1947.

The only evidence which on its face might cast any doubt upon the legal consequences of this conduct was testimony that plaintiff consulted her attorneys before moving to Oregon and they approved this course of action; that after she went to live in Oregon she was at times uncertain whether she would remain there or remove to California; and that from time to time she considered the possibility of returning to her husband when he should be released from prison. Finally, although in her testimony she repeatedly expressed her intention to make Oregon her home, she did respond to a cross examiner's questions about her "visit" to her brother with answers in which she used the same idiom.

The district court, on the basis of these facts found that it was without jurisdiction. After reviewing the evidence, the court "finds as a fact [1] that plaintiff is a resident and inhabitant of the Commonwealth of Pennsylvania * * * [2] that plaintiff was a resident and inhabitant of Pennsylvania on July 9, 1948, the date of the commencement of this action * * * [3] that plaintiff was domiciled in Pennsylvania from September, 1944 * * * [4] that plaintiff has never formulated any intention of residing permanently elsewhere * * * [5] that the absence of plaintiff from Pennsylvania is in her mind temporary and depends upon matters connected with the pending litigation * * * [and 6] that plaintiff entertains a fixed intention to return to Philadelphia, Pennsylvania, and remain there permanently as soon as conditions make it, in her opinion, desirable."*fn1

The court recognized that plaintiff was free to establish her domicile in any place she chose after the incarceration of her husband for felony in Pennsylvania. Restatement, Conflict of Laws (1934) § 28. It stated the applicable rule of law to be that domicile may be changed by personal presence in the new state, and an "abiding intention to make it home." "Her residence could not be changed without an abiding intention to live at a particular place elsewhere. The court has found that such an intention was never formulated by the plaintiff." Again, in its separate Findings of Fact and Conclusions of Law, the court stated: "Plaintiff has never since [September, 1944] * * ...

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