During the entire period of his service (from 1961 to 1969) his "home of record" was carried on the Navy records as being in Pennsylvania and plaintiff made no attempt to change this.
There was a good deal of testimony as to plaintiff's activities after August 17, 1967, -- the date suit was filed. However, most of this evidence is at best equivocal and had little, if any, relevance to the critical inquiry as to domiciliary intent on August 17, 1967. Bowman v. DuBose, 267 F. Supp. 312 (D.D.C., 1967). For example, plaintiff accepted permanent employment in New Jersey to follow the expiration of enlistment in 1969, but he had no reason in 1967 to anticipate that such employment would be forthcoming two years later.
There is no doubt that a serviceman may acquire a new domicile at the point of his military service. Ellis v. Southeast Construction Co., 260 F.2d 280, 282 (C.A. 8, 1958); Rest., Conflict of Laws, § 21, Comment c (1934). He cannot do this, however, "unless he indicates an intent to abandon such original domicile and adopt a new one." Seegers v. Strzempek, 149 F. Supp. 35, 36 (E.D. Mich., 1957); see also Price v. Greenway, 167 F.2d 196 (C.A. 3, 1948); Bowman v. DuBose, 267 F. Supp. 312 (D.S.C. 1967). The domicile of a serviceman at the time of enlistment is presumed not to change, and evidence of an intention to change must be "clear and unequivocal." Sweeney v. District of Columbia, 72 App. D.C. 30, 113 F.2d 25, 33 (1940). Plaintiff's evidence falls far short of that standard. Indeed, it rather points to an intent, at least as of August 1967, to retain his Pennsylvania domicile.
The mere establishment of an "off-base" home is not enough. Bowman v. DuBose, 267 F. Supp. 312 (S.C., 1967). And against this are the facts that plaintiff continuously listed Pennsylvania as his "home of record" and in 1968, after living in New Jersey for a year, re-registered his car in Pennsylvania and applied for and received a Pennsylvania driver's license, both under a Pennsylvania address. Plaintiff gave no reason to support his conclusory statement that he intended to make his home in New Jersey. For example, he did not testify that he preferred the school system there, or that he saw more job opportunities, or that he liked the surroundings or the people. Cf. Ellis v. Southeast Construction Co., 260 F.2d 280, 283 (C.A 8, 1958). Plaintiff's testimony that in 1967 he was considering the Navy as a career adds nothing to his position. His original domicile of Pennsylvania would follow him "regardless of the term of service, unless he indicates an intent to abandon such original domicile and adopt a new one." Seegers v. Strzempek, 149 F. Supp. 35, 36 (E.D. Mich., 1957). Since we find no convincing evidence in this record of such intent, we must reluctantly dismiss the action as to defendants Lane and Chelten Rambler, Inc.
It is so ordered.
© 1992-2004 VersusLaw Inc.