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King v. Fisher

Superior Court of Delaware, New Castle County

September 29, 1955

Jack A. KING, Plaintiff,
v.
Roland Edward FISHER, Defendant.

Action for damages arising from an automobile accident in which defendant was involved. On defendant's motion to quash service of process and dismiss action for insufficiency of process, the Superior Court, Layton, J., held that defendant, who was a naval officer, had his usual place of abode in Virginia, wherein he and his wife resided and his address was listed on current roster of officers of naval ship at time of attempted service of process on him at his parents' home in Delaware.

Motion granted.

Louis Goldstein, Wilmington, for plaintiff.

Henry R. Horsey (of Berl, Potter & Anderson), Wilmington, for defendant.

LAYTON, Judge.

Defendant, an officer in the regular Navy, was involved in an automobile accident in Virginia on August 8, 1953. He was then stationed in Norfolk. From then until November 21, 1953, he made frequent week end visits to his family's home in Claymont, Delaware, where his personal effects were stored, where he listed his address with the Bureau of Naval Personnel, where he obtained his automobile driver's license and where he filed his Federal Income Tax returns. Defendant's father and mother were not long time residents of Delaware, having only moved here from Pennsylvania in late 1952 or early 1953.

On November 21, 1953, he married a girl who lived in and worked at the Memorial Hospital in Wilmington, and from that day until December 26, 1953, they rented and lived in an apartment in Norfolk.

On December 26, 1953, he was granted a five-day leave prior to five months' overseas service. The apartment was given up. Three days of their vacation were spent in Claymont and two at his wife's home in New Jersey. From January 1, 1954, through May 29, 1954, defendant was on foreign duty with his ship, and his wife returned to Wilmington and resumed her former job, living at the nurses' home in the Memorial Hospital.

During this period, defendant filed a Federal Tax return stating that his address was Claymont, Delaware.

On his return from overseas on May 29, defendant was granted 15 days leave, of which 11 days were spent at Claymont, one night with his in-laws in New Jersey and two days at Wildwood.

On July 4th (what happened from June 15 to July 4 is not disclosed) defendant and his wife rented an apartment in Portsmouth, Va., and were living there on August 6th, at which time [49 Del. 376] service was attempted to be made on defendant at his parents'

Page 77

home in Claymont. As of this latter date, defendant's address was listed on the current roster listing of officers of the U.S. S. Newport News as 802 Halifax Ave., Portsmouth, Va.

In Alder v. Hudson, Del.Super.1954, 106 A.2d 769, Judge Carey had a somewhat analogous situation although based on less complex facts. There, defendant was stationed with the Air Force in Minnesota. Prior to his enlistment at the age of 20, he had always lived with his family in Delaware. He was unmarried. He visited his parents twice yearly on leave. Every inference suggested that, on his discharge, he would return to Delaware to live. Judge Carey adopted the Federal Rule that the mere fact of entry into Military Service is not sufficient to demonstrate an intention of abandoning the former usual place of abode and held that service upon defendant by leaving copies of the process, etc., at his father's home in Delaware was valid.

The facts here suggest a different conclusion. Service with our armed forces frequently results in a somewhat nomadic existence as compared with the ordinary walks of life. Assignment to a station, camp or ship compels the physical presence of military personnel at spots all over the country, even the world, for fixed periods but does not necessarily result in a change of their domicile. I take it that the words ‘ usual place of abode’ were ...


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