Before MARIS, GOODRICH and O'CONNELL, Circuit Judges.
O'CONNELL, Circuit Judge.
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,*fn1 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,*fn2 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.*fn3 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 our 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 marriage) and April 14, 1945 (date of filing of complaint), plaintiff chose a domicil different from that of her husband; (b) such new domicil of choice was in New Jersey; and (c) the law permitted plaintiff, while still a married woman, to choose a domicil other than that of her husband. The ruling of Judge Smith that "that domicil [Iowa] continued until suit was brought in the immediate case, and still continues" of necessity includes a finding that New Jersey was neither in law nor in fact the domicil of plaintiff on April 14, 1945. Even if we were to assume arguendo that plaintiff did have the power legally to choose another domicil subsequent to her marriage, we believe the evidence adduced indicating such new domicil to be New Jersey lacks substantiality. While plaintiff did board and work in New Jersey after her marriage, the uncontroverted testimony shows that she kept much of her personal belongings in the trailer in New York and went there "whenever she could get off." Plaintiff's parents were still living in New York when she enlisted.
Since plaintiff was in the military service when the instant complaint was filed, her domicil remained the same as it was on the date of enlistment. Restatement, Conflict of Laws, §§ 21c and 16b. We believe the record amply justifies the conclusion of Judge Smith that diversity of citizenship existed in this case.
This leads us to the consideration of whether Judge Meaney was obliged to hear anew the testimony bearing upon plaintiff's citizenship, or whether he was justified in accepting Judge Smith's ruling. Obviously, if the first motion of Public Service to dismiss had been made prior to the impanelling of the jury by Judge Smith, his ruling would not have been affected by the later failure of the jury to agree. Public Service asks us to take the position that the receipt of the testimony after the jury had been sworn and after evidence concerning the accident had been adduced warrants a different result. We deem this contention to be both illogical and undesirable. Commercial Union of America v. Anglo-South American Bank, 2 Cir., 1925, 10 F.2d 937, 941, holding that "Judges of co-ordinate jurisdiction, sitting in the same court and in the same case, should not overrule the decisions of each ...