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JOHNSON v. ZAREFOSS

September 29, 1961

Larry JOHNSON, a minor by his parent and natural guardian, Jess Johnson and Jess Johnson in his own right
v.
Doctor Albert ZAREFOSS, Nettie Zarefoss, a/k/a Mrs. A. H. Zarefoss and Larry Zarefoss



The opinion of the court was delivered by: LORD, JR.

This matter arises out of an automobile accident that occurred in Somerset Pennsylvania, which resulted in injuries to the plaintiff, Larry Johnson. Jurisdiction is grounded on diversity of citizenship and the jurisdictional amount.

Somerset, Pennsylvania, is in the Western District of Pennsylvania. There is no contradiction of the fact that all defendants are citizens and residents of Somerset, Pennsylvania.

 According to the complaint, plaintiffs are citizens and residents of Illinois. Defendants have moved to dismiss, citing the first clause of the statute having to do with venue in the District Courts of the United States, Title 28 U.S.C.A. 1391(a); June 25, 1948, c. 646, 62 Stat. 935:

 '(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside.'

 Plaintiff Larry Johnson resists the motion, asserting that he was stationed at Philadelphia, in the Eastern District of Pennsylvania, at the time suit was filed on May 10, 1961. More specifically, he asserts by affidavit and answers to his own interrogatories that he was a sailor in the United States Navy from November 5, 1959 to May 16, 1961 and says that during that time:

 'I resided at the U.S. Naval Hospital, Philadelphia, Pennsylvania, where I was stationed until my discharge on May 16, 1961.'

 To avoid technicality, the plaintiff's answers to his own interrogatories are simply treated as an affidavit. That concession, however, does not serve to make his position tenable to any extent whatsoever. In order to reach the heart of this problem, for that matter, several other delicate problems are bypassed. For instance, there could be serious question as to the necessity of dismissing the father Jess Johnson in his own right as plaintiff in view of his Illinois residence were plaintiff's present contentions to be upheld. Further, there could well be another issue as to estoppel or waiver of the right to assert Eastern District residence by virtue of the claim of Illinois residence in the complaint. There is no need to go into those matters, however, for the simple reason that plaintiff has in fact made no showing of residency in the Eastern District of Pennsylvania.

 The term reside as used in the quoted section is the crux of the present problem. Several years ago, referring to the word as used in another statute, Judge Goodrich used the following apt language:

 '* * * The words 'resident' and ;residence' have no precise legal meaning although they are favorite words of legislators. Sometimes they mean domicile plus physical presence; sometimes they mean domicile; sometimes they mean something less than domicile * * *.' Willenbrock v. Rogers, 3 Cir., 1958, 255 F.2d 236, 237.

 In a number of federal districts, the residence reference in this venue section has indeed been held to be synonymous with citizenship and domicile. Champion Spark Plug Company v. Karchmar, D.C.S.D.N.Y.1960, 180 F.Supp. 727, 729; Schultz v. McAfee, D.C.D.Me.1958, 160 F.Supp. 210, 212; Finger v. Masterson, D.C.W.D.S.C.1957, 152 F.Supp. 224, 225; Shaffer v. Tepper, D.C.D.Ky.1955, 127 F.Supp. 892, 894. It is not necessary to go so far for the purposes of the present matter, however. It is at least clear that the simple circumstance of being stationed at a Naval Hospital for 18 months is not the equivalent of residence for these purposes. Speaking of another statute, the United States Supreme Court quoted language which is applicable here:

 'We shall not try to define what is the necessary attitude of mind to create or retain a residence under this statute, and how it differs from the choice of a 'home,' which is the test of domicile. Frankly it is doubtful whether courts have as yet come to any agreement on the question. But there is substantial unanimity that, however construed in a statute, residence involves some choice, again like domicile, and that presence elsewhere through constraint has no effect upon it.' McGrath v. Kristensen, 1950, 340 U.S. 162, 175, 71 S. Ct. 224, 232, 95 L. Ed. 173, quoting Neuberger v. United States, 2 Cir., 1926, 13 F.2d 541, 542, Hand, J.

 As to citizenship and domicile, the cases are clear that the serviceman's status in that respect is unchanged by virtue of his entering military service and being assigned to duties in another state. Price v. Greenway, 3 Cir., 1948, 167 F.2d 196, 199; Seegers v. Strzempek, D.C.E.D.Mich.1957, 149 F.Supp. 35, 36; Humphrey v. Fort Knox Transit Company, D.C.W.D.Ky.1945, 58 F.Supp. 362, 364.

 Assuming domicile is not the test under the venue statute, however, it is at least clear that something more than mere physical presence in the district is required. Stacher v. United States, 9 Cir., 1958, 258 F.2d 112.

 There are other cases which serve to illustrate the foregoing point, but the Stacher case, just cited, was chosen for convenience, since plaintiff has elected it as the keystone ...


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