Delaware, L. & W.R. Co. v. Petrowsky

• Decision Date: 07 March 1918
• Docket Number: 102.
• Citation: 250 F. 554
• Court: U.S. Court of Appeals — Second Circuit
• Parties: DELAWARE, L. & W.R. CO. v. PETROWSKY.

250 F. 554

DELAWARE, L. & W.R. CO. v. PETROWSKY.

No. 102.

United States Court of Appeals, Second Circuit.

March 7, 1918

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

W. S Jenney, of New York City, and F. W. Thompson, of St. Louis, Mo. (A. J. McMahon and J. E. Morrissey, both of New York City, of counsel), for plaintiff in error.

Baltrus S. Yankaus, of New York City (Albert Massey, of New York City, of counsel), for defendant in error.

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

ROGERS Circuit Judge.

If the court below had jurisdiction of this case it is because of the diversity of citizenship of the parties. But the defendant in its answer alleges that no such diversity of citizenship exists. It denies that the defendant is a citizen of the state of New York as he claims, and it asserts that he is a citizen of the state of Pennsylvania in which the defendant itself resides.

The term 'citizen,' as used in the Judiciary Act with reference to the jurisdiction of the federal courts, is substantially synonymous with the term 'domicile.' It means a citizen of the United States residing permanently in the particular state. Case v. Clarke, 5 Fed.Cas. 254; Catlett v. Pacific Ins. Co., 5 Fed.Cas. 291; Gardner v. Sharp, 9 Fed.Cas. 1196, 1199; Winn v. Gilmer (C.C.) 27 F. 817; Sharon v. Hill (C.C.) 26 F. 337, 342; Zambrino v. Galveston, etc., R. Co. (C.C.) 38 F. 449, 453; Illinois Life Ins. Co. v. Shenehon (C.C.) 109 F. 674, 675; Marks v. Marks (C.C.) 75 F. 321, 324; Harding v. Standard Oil Co. (C.C.) 182 F. 421, 423, 424; Pennsylvania Co. v. Bender, 148 U.S. 255, 13 Sup.Ct. 591, 37 L.Ed. 441; Wolfe v. Hartford Life & Annuity Ins. Co., 148 U.S. 389, 13 Sup.Ct. 602, 37 L.Ed. 493.

Was the plaintiff domiciled in the state of New York when this suit was commenced?

At the time of the accident plaintiff was a minor, being 17 years of age. His father was born in Russia, a subject of the Czar, and came to this country in 1900, taking up his residence in the state of Pennsylvania, where he has resided ever since. The father was naturalized on May 26, 1911, becoming a citizen of the United States at that time. The plaintiff was then living with his father and continued so to do until May or June, 1914, when his father turned him out to earn his own living.

The father testified that after the injury to the plaintiff he told him he could not support him and to go away. 'I cannot support you any longer, so you can go wherever you like. ' Prior to that the boy had lived at home and paid his board from his earnings made by working in the mine. After this conversation he left his home in Pennsylvania and went to his brother Peter, who lived at Hempstead, Long Island, N.Y., and in August of the same year an indenture was entered into by which plaintiff was indentured to his brother at Hempstead as a personal and house servant for the period of his minority.

The theory of the plaintiff is that he became emancipated from the care and custody of his parents by what is alleged to be articles of apprenticeship which transferred his care and custody to his brother.

The theory of defendant is that the plaintiff being a minor had the domicile of his father during his minority, and could not during the period of his minority become a citizen of a state in which his father did not have his domicile.

By the indenture the parents expressly agreed:

'That the said Ignatz Petrowsky shall be emancipated from the care and custody of his parents, and it is hereby intended to transfer such care and custody to said Peter Petrowsky, who hereby agrees to assume the same and provide for the maintenance, education and other care of said infant to the same extent as his said parents would have been bound to provide for the same if the said infant had not been indentured and emancipated as hereinabove provided.'

The indenture was for the entire period of plaintiff's minority. And the question presented is whether notwithstanding the indenture the citizenship of the plaintiff continued to be the same as his father's which we have seen was in Pennsylvania, or whether it became the same as his brother's which was in New York.

In a recent case in the House of Lords the Earl of Halsbury pointed out that to abandon one domicile for another means something far more than a mere change of residence. It is, he said, a proceeding of a very serious nature and the intention to abandon is required to be proved by satisfactory evidence. Huntly Marchioness v. Gaskell (1906) A.C. 56, 66, 67. The burden of proof rests on the party who alleges that a change of domicile has taken place. U.S. Trust Co. v. Hart, 150 A.D. 413, 135 N.Y.Supp. 81.

The parties may have intended by the execution of this indenture to work a change of domicile with the view of enabling the plaintiff to sue in the Southern district of New York. But the courts are not ordinarily concerned with the motives by which a party may have been influenced to change his domicile, if in fact it appears that there was an absolute and fixed intention to abandon one domicile and acquire another. Matter of Newcomb, 192 N.Y. 238, 84 N.E. 950.

As children born within a country of parents who are subject to the jurisdiction thereof are citizens of such country, the plaintiff was born a subject of the Czar. When his father by naturalization became a citizen of the United States, the plaintiff, being a minor at the time and living within this country, became a citizen of the United States by virtue of the father's naturalization. And for purposes of jurisdiction he was a citizen of the state of Pennsylvania where his father had his domicile. If the plaintiff at the commencement of the action is domiciled in a different state from that of defendant, he is a citizen of that state for the purpose of suing in the court of the United States. Gilbert v. David, 235 U.S. 561, 35 Sup.Ct. 164, 59 L.Ed. 360.

The law is well established that every person at his birth acquires a domicile of origin which is that of the person on whom he is legally dependent, which in the case of a legitimate child is that of its father, and in the case of an illegitimate child is that of its mother.

The general rule is also well established that a person while a minor being non sui juris cannot change his or her domicile.

'A domicile once acquired is retained until it is changed (1) in the case of an independent person, by his own act; (2) in the case of a dependent person, by the act of some one on whom he is dependent. ' Dicey on Domicile, p. 66.

And Dicey goes on to say that in the case of an infant the person capable of changing the domicile is the person on whom the infant 'is, for this purpose at any rate, dependent, who in most instances is the infant's father. ' If in most instances the father can change the infant's domicile, there must be instances when he cannot, although perhaps another may. And if the child's domicile of origin can be changed by the act of one on whom the child is dependent, it would seem that if the parents relinquish to another the care, custody, and control of the child during his minority the one who assumes the custody and control and agrees to care for and maintain him to the same extent as his parents would have a right to change his domicile. But the question presented is not so simple as it seems. On the contrary, it is perplexing and not free from doubt. There is too a strange lack of authority upon the subject.

That a minor child may be emancipated by its parent's consent express or implied is established law. That 'emancipation' involves an entire surrender of the right to the care, custody, and earnings of the child, as well as a renunciation of parental duties, is also established. Inhabitants of Carthage v. Inhabitants of Canton, 97 Me. 473, 476, 54 A. 1104; Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S.W. 956. 134 Am.St.Rep. 482, 19 Ann.Cas. 326; Brosius v. Barker, 154 Mo.App. 657, 136 S.W. 18; Bristor v. Chicago & N.W. Ry. Co., 128 Iowa, 479, 104 N.W. 487. But does emancipation confer upon the child a right to choose his own domicile? In 29 Cyc. 1675, it is said that the effect of emancipation is to confer upon the child freedom to act on its own responsibility with the same independence as though it had attained majority. If that be true, then an emancipated child has a right to choose its own domicile. But the cases cited to support the statement do not establish the proposition. They establish, however, that a parent who emancipates a minor child confers upon it the right to labor on its own account, and to appropriate to its own use whatever it may earn. Crowley v. Crowley, 72 N.H. 241, 56 A. 190; Stanley v. National Union Bank, 115 N.Y. 122, 22 N.E. 29. It is not so clear what else it confers.

The leading authority in England on the domestic relations states that:

'The only effect of emancipation as between parent and child would seem to be that it gives a right to a minor child to his own wages or earnings. ' Eversley on Domestic Relations, p. 600.

It appears to be settled that the marriage of a minor with his father's consent works an emancipation, the reason given for this proposition being that the marriage gives rise to a new relation inconsistent with subjection to the control and care of the parent. The husband is the head of a new family and as such is subject to obligations and duties to his wife and children which require him to be the master of himself his time, his labor, earnings, and conduct. Sherburne v. Hartland, 37 Vt. 528; Cochran v. Cochran, 196 N.Y. 86, 89, 89 N.E. 470, 24 L.R.A.(N.S.) 160, 17 Ann.Cas. 782; State ex rel. Scott v. Lowell, 78 Minn. 166, 80 N.W. 877, 46 L.R.A. 440, 79 Am.St.Rep. 358. And in ...