Price v. Greenway, 9462.
| Decision Date | 26 March 1948 |
| Docket Number | No. 9462.,9462. |
| Citation | 167 F.2d 196 |
| Parties | PRICE v. GREENWAY et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Henry J. Sorenson, of Newark, N. J. (Carl T. Freggens, of Newark, N. J., on the brief), for appellant.
John A. Laird, of Hoboken, N. J. (Samuel H. Berlin, of Newark, N. J., on the brief), for Price.
Harry E. Walburg, of Newark, N. J. (Cox and Walburg, of Newark, N. J., on the brief), for Greenway and Toepleman.
Before MARIS, GOODRICH and O'CONNELL, Circuit Judges.
Plaintiff was riding as passenger on a bus driven by defendant Simpson, an employee of Public Service Coordinated Transport, on December 11, 1944. At Linden, New Jersey, the bus collided with a truck, operated by Henderson Bonded Lines,1 which was parked along the curb on the right side of the road.
Asserting a New York domicil, plaintiff filed the instant complaint on April 14, 1945. The answers of both Public Service and Henderson were in the nature of a general denial. In December, 1946, after completion of the adducing of testimony before the jury which had been impanelled, Public Service moved to dismiss on the ground that no diversity of citizenship existed between plaintiff and Public Service. Out of the presence of the jury, and with the apparent approval of Public Service,2 Judge Smith heard extensive testimony and argument concerning the citizenship of plaintiff. At the conclusion of this inquiry into citizenship, Public Service renewed the motion to dismiss. Denying the motion, Judge Smith found plaintiff to be a citizen of Iowa.3 Shortly thereafter, the taking of testimony on the merits being concluded, the case was submitted to the jury. The jury was unable to agree on the facts; so Judge Smith withdrew a juror and stated that a mistrial would be declared.
About three months later, this case again came up for trial. Before Judge Meaney, Public Service moved to dismiss for lack of diversity. Judge Meaney declined to hear any facts concerning plaintiff's citizenship except for those which were not brought to Judge Smith's attention and which might affect the determination. Counsel for Public Service explained what he could offer in the line of proof. Judge Meaney, ruling that the additional allegations of Public Service would not lead him to reach a different conclusion, thereupon denied the motion. A jury was then impanelled and the case proceeded to trial. The jury returned a verdict of no cause of action as to the first count, which alleged negligence of Henderson, but granted plaintiff recovery in the sum of $32,875 on the second count, which alleged negligence of Public Service. A judgment dated April 1, 1947, was entered accordingly.
Public Service moved for a new trial. An order denying that motion was entered on June 27, 1947. Public Service thereupon brought the instant appeal from the April 1, 1947, judgment, both as to Henderson and as to plaintiff. Henderson has moved to dismiss that portion of the appeal which seeks review of the judgment in favor of Henderson. Also, shortly before our hearing of the instant appeal, Public Service moved in this court "for leave to apply to the district court for leave to file an application to set aside the verdict * * * and to grant a new trial to defendants on the ground of newly discovered evidence." Both these pending motions were heard in conjunction with the appeal at bar and will be considered in the course of this opinion.
The principal question presented for our review is that of jurisdiction. If Judge Smith was justified in finding that diversity of citizenship between plaintiff and Public Service existed when the complaint was filed, and if Judge Meaney was not required to hear the issue de novo, error was not committed in limiting the offer of proof by Public Service and thereafter permitting the case to go to trial on the merits.
The evidence adduced before Judge Smith disclosed the following uncontroverted facts: Plaintiff was born and raised in Pennsylvania. She voted there in 1928. In 1930, plaintiff and her mother began to accompany plaintiff's father, whose position as field superintendent for an iron works required extensive travel, from place to place. In 1936, plaintiff's father bought a trailer. In 1939, the family moved to Newburgh, New York. Between July, 1941, and November, 1942, the trailer was in New Jersey; from November, 1942, to March, 1945, it was in Newburgh; from March, 1945, to the time of the mistrial, it was in New Jersey. Plaintiff's father not only voted in New York in 1943, but also joined a Masonic lodge and a gun club there, and transferred his union membership to a New York local. He never voted in New Jersey, nor did he transfer his lodge or union memberships to New Jersey.
Plaintiff lived in Newburgh from 1939 to 1941. In October, 1941, she took a job in New Jersey. On August 16, 1943, in New Jersey, she married a sailor named Dana E. Price, an Iowa native with approximately twenty years of continuous naval service. About one month later, plaintiff and her husband parted. At the time of trial, no divorce proceedings had been begun.
On May 16, 1944, plaintiff enlisted in the Women's Army Corps. When she made out her authorization for the purchase of war savings bonds, for the allotment of part of her military pay, and for her insurance, she gave Newburgh as her permanent home. At the time of the accident, she was stationed in Newark, New Jersey; when the instant complaint was filed, she was in the Newark Army Air Base Hospital.
Plaintiff and her father testified that neither plaintiff nor her father considered New Jersey to be their home at any time, and that neither ever intended to remain in New Jersey for the indefinite future. Moreover, plaintiff's father further stated that, eligible for retirement in a few months, he planned to settle in California, New York, or Pennsylvania. Plaintiff testified that, when the instant complaint was filed, it was her intent to remain in the military service indefinitely.
On the basis of the testimony summarized above, we think Public Service can hardly assert that, as a matter of law, plaintiff was a citizen of New Jersey when the complaint was filed. Her domicil of origin was Pennsylvania. Whatever changes of domicil might have been effected between 1930 and August 16, 1943, it is clear that her marriage on the latter date made Iowa her domicil as a married woman. See Restatement, Conflict of Laws, § 27, Comment b, with illustrations thereto. For the instant contention of Public Service to prevail, it would have to be established that (a) between August 16, 1943 (date of...
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