Gallagher v. Phila. Transp. Co. - 185 F.2d 543 (3d Cir. 1950)

Rule:

It is the absence of an intention to go elsewhere which is controlling. It is enough to intend to make the new state one's home. It is not important if there is within contemplation a vague possibility of eventually going elsewhere, or even of returning whence one came. If the new state is to be one's home for an indefinite period of time, he has acquired a new domicile. Finally, it is the intention at the time of arrival which is important.

Facts:

Plaintiff had lived in Oregon during childhood. In October 1946, she had her brother take her two children to his home in Forest Grove, Oregon. Plaintiff testified that at that time, she intended to go to Oregon and make her home there as soon as it was determined whether a parole petition could be filed for her husband. In the meantime, she remained in Philadelphia working in a restaurant and living in a rented room. Subsequently, plaintiff was injured, and was hospitalized for seven weeks. After her release, she stayed in various furnished rooms in Philadelphia rooming houses. Plaintiff then went to Forest Grove, Oregon to be with her children. Plaintiff then filed a diversity action against the defendant, alleging that she was a citizen of Oregon. The jury rendered a verdict in plaintiff's favor. The district court then granted defendant's 28 U.S.C.S., Fed. R. Civ. P. 50(b), motion to set aside the jury verdict in favor of plaintiff and dismiss the action for lack of diversity jurisdiction, on the basis that plaintiff was a citizen of the Commonwealth of Pennsylvania. Plaintiff challenged the district court’s judgment. 

Issue:

Was the plaintiff a citizen of Commonwealth of Pennsylvania, thereby justifying the dismissal of the action for lack of diversity jurisdiction? 

Answer:

No.

Conclusion:

On appeal, the court vacated and remanded the judgment that plaintiff was domiciled in Pennsylvania, holding that the district court applied an incorrect standard that plaintiff had to have had an affirmative intention to attach herself permanently to another state to change her domicile, when intent to make a new home, without a decision that such home was permanent, sufficed for the acquisition of a new domicile.