Mangene v. Diamond

• Decision Date: 24 January 1956
• Docket Number: No. 11693.,11693.
• Citation: 229 F.2d 554
• Parties: Marjorie B. MANGENE and Robert Mangene, her husband, Appellants, v. William J. DIAMOND.
• Court: U.S. Court of Appeals — Third Circuit

229 F.2d 554 (1956)

Marjorie B. MANGENE and Robert Mangene, her husband, Appellants, v. William J. DIAMOND.

No. 11693.

United States Court of Appeals Third Circuit.

Argued December 6, 1955.

Decided January 24, 1956.

Herbert A. Barton, Philadelphia, Pa. (Swartz, Campbell & Henry, Philadelphia, Pa., Michael DeMarco, Malden, Mass., on the brief), for appellants.

Cornelius C. O'Brien, Jr., Philadelphia, Pa. (Albert C. Gekoski, Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This suit for personal injuries arising out of the collision of two automobiles was dismissed by the district court as barred by the California statute of limitations.

The uncontradicted facts are contained in an affidavit and deposition of appellee. He stated in his deposition that on May 1, 1951 he owned his own home in Morton, Delaware County, Pennsylvania, where he lived with his wife and children.¹ On that date he was recalled to service with the United States Marine Corps. He was assigned to Camp Pendleton, California and left for that destination the same day. In August, 1951 his wife and children went out to California and joined him. While he and his family were away he rented his home until May, 1952. During the time his wife was with him in California they had discussed staying there but no permanent idea or decision had been reached by them as to this. He never sought a position in his profession there or looked into the possibilities of it. About a month prior to June 2, 1952 his little boy became ill. He knew then that his wife "was going to return home". Around that time he and his wife discussed whether or not they would return to Pennsylvania to live after he was discharged from the service. And said appellee, "Our decision was that when the baby became sick and my wife came back then all thought of staying in California stopped."

On June 2, 1952, appellee while driving his car was involved in the collision which gives rise to this cause. In his deposition he was specifically asked if the decision not to stay on in California after his discharge was arrived at before the accident and his answer was "Yes". He and his wife never at any time before or after the accident decided to remain in California. His wife with the sick boy and the other child left for Pennsylvania the day of the accident. He was discharged from the Marines August 30, 1952 and returned to Pennsylvania within a week. During the time he was in California he retained his Pennsylvania driver's license. He bought the car which was in the accident while in California and with reference to its California license plates and the giving of his California address in obtaining them testified, "It was just almost automatic when I bought the car * * * — I bought the license plates at the same time, or paid the fee for the license plates at the same time." The plates were attached by the dealer and were never renewed. During the time appellee was in service he received his mail other than that directed to his service address at his mother-in-law's house, East Lansdowne, Delaware County, Pennsylvania, which is about six miles from Morton. Prior to going to California he had been registered to vote in Pennsylvania. He had never so registered in California. He was certified as a public accountant in Pennsylvania alone. In his affidavit he says that "At no time did * * * he * * * intend to establish or make his home in California. He was stationed in California and stayed there only because he was forced to do so under military orders."

Our sole concern is whether at the time of the accident, under the above facts, appellee was a non-resident motorist of California within the meaning of the California Motor Vehicle Code, Section 404. We are not dealing with any confusion between domicile and residence. We start with the proposition that appellee, despite the fact that his home was in Pennsylvania and he was in California entirely because of service orders, could have obtained such residency had he so intended. But from the accepted facts he never intended to become a resident of California and so, under the law of that state which rules this question, his status as a non-resident never changed.

California law makes the question of intent vitally important. Appellant argues that there is some lack of clarity in the decisions of that state between residence and domicile. We find none but if there were that would not touch what is a primary requisite of residency under California's Motor Vehicle Code, namely, the intention to remain long enough to eliminate classification of the stay as temporary. In this case appellee never had the intention of remaining one moment longer in California than he was compelled to do by reason of his service commitment. His stay there was...