Sherman v. Roosevelt Co.

• Citation: 48 F. Supp. 434
• Decision Date: 11 January 1943
• Docket Number: Civil Action No. 1908.
• Parties: SHERMAN v. ROOSEVELT CO.
• Court: U.S. District Court — District of Massachusetts

48 F. Supp. 434

SHERMAN v. ROOSEVELT CO.

Civil Action No. 1908.

District Court, D. Massachusetts.

January 11, 1943.

Robert M. Morrison, of Boston, Mass., for plaintiff.

Haussermann, Davison & Shattuck and Robert H. Davison, all of Boston, Mass., for defendant.

FORD, District Judge.

This is an action based on Chapter 156, Section 46, of the General Laws of Massachusetts (Ter.Ed.) Annotated Laws of Massachusetts, Vol. 5, p. 109, brought by Ernest Sherman, plaintiff, a stockholder in the defendant corporation. It comes before me on defendant's amended motion to dismiss, the grounds being: (1) That plaintiff is a citizen of Massachusetts rather than of Connecticut as alleged in the complaint and, consequently, there is no diversity of citizenship; (2) that the amount in controversy is less than three thousand dollars; and (3) that the plaintiff is not the real party in interest.

Citizenship, for the purposes of this case, depends upon domicile. Gilbert v. David, 235 U.S. 561, 35 S.Ct. 164, 59 L.Ed. 360; Prince v. New York Life Ins. Co., D.C., 24 F.Supp. 41; Leave v. Boston Elevated Ry. Co., D.C., 14 F.Supp. 775. It is clear that plaintiff was domiciled in Massachusetts when he lived there with his parents, and the question now arises as to whether he has since acquired a domicile in Connecticut.

The plaintiff is twenty-nine years of age, unmarried, and formerly lived with his parents in Brookline, Massachusetts. On July, 1941, he obtained a position as a travelling assistant transportation inspector, based at Boston, for the New York, New Haven and Hartford Railroad. In October, 1941, while on assignment at New Haven, the plaintiff was made acting assistant locomotive distributor, based at New Haven, taking the place of a man who was sick, but still retaining his title as assistant transportation inspector. When one is based at a particular place it means that any expense incurred outside the base can be put on the monthly expense account. In any event, he ceased to be based at Boston in the early part of December, 1941, and has since been based at New Haven.

Plaintiff has lodged in New Haven at the Y.M.C.A., since December, 1941, where he has a single room containing a bed, dresser, desk, easy chair, and two other chairs. He pays $5.50 per week for the room and takes his meals at restaurants. He has his clothes, personal effects, pipes, and books with him at New Haven. All other things (old college books, old clothes, and a couple of musical instruments) are at his parents' home in Brookline. Before stopping at the Y.M.C.A., he lived at the Hotel Garde, in New Haven, from September, 1941, until December of the same year.

On January 1, 1942, the plaintiff was dropped from the poll tax list of Brookline. He is on the tax assessor's list in New Haven and paid the old age pension tax which Connecticut assesses. He filed a state income tax return in Massachusetts for 1941; there is no state income tax in Connecticut. He has continued to file his federal income tax returns with the collector at Boston.

When he went to New Haven, or shortly thereafter, the plaintiff closed out a savings account he had in Boston and used the money withdrawn to buy war bonds. These bonds and certain stock certificates owned by the plaintiff are kept in his father's safety deposit box located somewhere in the vicinity of Boston. He has a savings bank account in Cambridge, Massachusetts.

When the plaintiff lived in Brookline he shared a room with his older brother. Now, he returns to his former abode about twice a month on week-ends and occupies the same room as he formerly did.

To acquire a domicile of choice, a person must establish a new dwelling place with the intention of making it his home. There must be presence at the newly established dwelling place, and, at the same time, there must exist an intention to reside there permanently or indefinitely, a change facto et animo. Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 24 S.Ct. 696, 48 L.Ed. 1027; Ennis et al. v. Smith et al., 55 U.S. 400, 423, 14 L.Ed. 472; Leave v. Boston Elevated Ry. Co., 14 How. 400, supra; Restatement, Conflict of Laws, Sections 15-20. All the circumstances must be considered in determining whether a change of domicile has been made. A mere intent to change domicile will not alone work a change; the intent must be borne out by adequate facts. Sun Printing & Publishing Association v. Edwards, supra, 194 U. S. page 383, 24 S.Ct. 696, 48 L.Ed. 1027; In re Sedgwick, D.C., 223 F. 655.

The plaintiff's move to Connecticut was motivated by his work. He testified, by deposition, that the position he holds in New Haven is permanent, a life job as far as he can tell. He says that his domicile is Connecticut, that he intends it to be such. However, as stated above, the intent to reside permanently in a place must be borne out by adequate facts. Practically all the plaintiff's worldly possessions, aside from the bare necessities, are located in his father's safety deposit box...