250 F. 554 | 2d Cir. | 1918
The term “citizen,” as used in the Judiciary Act with reference to the jurisdiction of the federal courts, is substantially synonymous with the term “domicile.” It means a citizen of the United States residing permanently in the particular state. Case v. Clarke, 5 Fed. Cas. 254; Catlett v. Pacific Ins. Co., 5 Fed. Cas. 291; Gardner v. Sharp, 9 Fed. Cas. 1196, 1199; Winn v. Gilmer (C. C.) 27 Fed. 817; Sharon v. Hill (C. C.) 26 Fed. 337, 342; Zambrino v. Galveston, etc., R. Co. (C. C.) 38 Fed. 449, 453; Illinois Life Ins. Co. v. Shenehon (C. C.) 109 Fed. 674, 675; Marks v. Marks (C. C.) 75 Fed. 321, 324; Harding v. Standard Oil Co. (C. C.) 182 Fed. 421, 423, 424; Pennsylvania Co. v. Bender, 148 U. S. 255, 13 Sup. Ct. 591, 37 L. Ed. 441; Wolfe v. Hartford Life & Annuity Ins. Co., 148 U. S. 389, 13 Sup. Ct. 602, 37 L. Ed. 493.
Was the plaintiff domiciled in the state of New York when this suit was commenced?
At the time of the accident plaintiff was a minor, being 17 years of age. His father was born in Russia, a subject of the Czar, and came to this country in 1900, taking up his residence in the state of Pennsylvania, where he has resided ever since. The father was naturalized on May 26, 1911, becoming a citizen of the United States at that time. The plaintiff was then living with his father and continued so to do until May or June, 1914, when his father turned him out to earn his own living.
The father testified that after the injury to the plaintiff he told him he could not support him and to go away. “I cannot support you any longer, so you can go wherever you like.”' Prior to that the boy had lived at home and paid his board from his earnings made by working in the mine. After this conversation he left his home in Pennsylvania and went to his brother Peter, who lived at Hempstead, Rong Island, N. Y., and in August of the same year an indenture was entered in ¿o by which plaintiff was indentured to his brother at Hempstead as a personal and house servant for the period of his minority.
The theory of the plaintiff is that he became emancipated from the care and custody of his parents by what is alleged to be articles of apprenticeship which transferred his care and custody to his brother.
The theory of defendant is that the plaintiff being a minor had the
By the indenture the parents expressly agreed:
“That the said Ignatz Petrowsky shall he emancipated from the care and custody of his parents, and it is hereby intended to transfer such care and custody to said Peter Petrowsky, who hereby agrees to assume the same and provide for the maintenance, education and other care of said infant to the same extent as his said parents would have been bound to provide for the same if the said infant had not been indentured and emancipated as herein-above provided.”
The indenture was for the entire period of plaintiff’s minority. And the question presented'is whether notwithstanding the indenture the citizenship of the plaintiff continued to be the same as his father’s wh[ch we have seen was in Pennsylvania, or whether it became the same as his brother’s which was in New York.
*559 “A domicile once acquired is retained until it is changed (1) in the case of an independent person, by his own act; (2) in the case of a dependent person, by the act of some one on whom he is dependent.” Dicey on Domicile, p. 66. i
And Dicey goes on to say that in the case of an infant the petson capable of changing the domicile is the person on whom the infant “is, for this purpose at any rate, dependent, who in most instances is the infant’s father.” If in most instances the father can change the infant’s domicile, there must be instances when he cannot, although perhaps another may. Arid if the child’s domicile of origin can be changed by the act of one on whom the child is dependent, it would seem that if the parents relinquish to another the care, custody, and control of the child during his minority the one who assumes the custody and control and agrees to care for and maintain him to the same extent as his parents would have a right to change his domicile. But the question presented is not so simple as it seems. On the contrary, it is perplexing and not free from doubt. There is too a strange lack of authority upon the subject.
The leading authority in England on the domestic relations states that:
“The only effect of emancipation a» between parent and child would seem to be that it gives a right to a minor child to his own wages or earnings.” Eversley on Domestic Relations, p. 600.
A servant is sometimes said to have the domicile of his master, but Dicey, in his Conflict of Raws (Moore’s Ed. p. 151), says:
‘■‘There is not, however, any authority in English law, or anything in the circumstances of modern life, establishing a definite rule, or even a presumption, as to the domicile of a servant. Whether he has or has not a ‘permanent -home’ in the same country as his master must, as in other cases, depend upon the combination of fact and intention.”
And in this respect we believe there is no difference between English law and the law of this country.
Now “residence” and “domicile” are two perfectly distinct things, as Rord-Westbury pointed out in Bell v. Kennedy, L. R. 1 H. L. Sc., 320, 321, and as Lord Macnaghten pointed out again in Winans v. Attorney General, [1904] A. C. 287, 290. In the Indiana case the court speaks of “residence,” but the word “domicile” is not once mentioned. It is, howeyer, well settled that residence as used in statutes defining political rights is synonymous with domicile. It denotes a permanent residence. Dicey nowhere lays down the rule that an apprentice has the domicile of his master, and we know of no English case which so decides. The > Indiana case, however, must be regarded as such an authority, , ,
The term “apprentice” is derived from the Erench word “ap-prendre,” which means to learn. The word indicates the essential and characteristic incident of the contract of apprenticeship. It signifies a relationship of which the primary purpose is the giving and receiving of instruction in a profession, trade or employment.
In Lyon v. Whitemore, 3 N. J. Law, 846 (1811), an “apprentice” is defined to be a young person bound by indenture to a tradesman or artificer who, upon certain covenants is to teach him his trade. And in St. Pancras v. Clapham, 2 El. & El. 742, Cockburn, C. J., said that:
“An apprentice seems to be a person who is hound to and who serves another for the purpose of learning something which the other is to teach him.”
And in Labatt’s Master & Servant (2d Ed.) vol. 6, § 2058, it is said that:
“Apprenticeship may he succinctly defined as a contract by which one person agrees to perform certain services under Hie control of another, for the purpose of receiving such special instruction as will qualify him for the occupation to which the services have reference.”
There is nothing in the indenture in the instant case which indicates that the purpose was to teach the plaintiff a trade or employment, or to aid him in acquiring any kind of technical knowledge.
Moreover, the Domestic Relations Raw of New York, in which state the “master or employer” resided and the service was to be performed, provides that:
“If such minor is bound as an apprentice to learn the art or mystery of any trade or craft, an agreement on the part of the employer to teach, or cause to be carefully and skillfully taught, to such apprentice, every branch of the business to which such apprentice is indentured, and that at the expiration of such apprenticeship he will give to such apprentice a certificate, in writing, that such apprentice has served at such trade or craft a full term of apprenticeship specified in such indenture.” Birdseye’s Cumming & Gilbert’s Consolidated Laws of New York, Ann., vol. 1, p. 1082, § 121, subd. 8.
A contract which provides both for the performance of services by one of the parties and for the giving of instruction hy the other is to be deemed a contract of hiring and service or of apprenticeship, according as it may appear that its primary and essential purpose is the performance of services or the imparting of instruction. Labatt’s Master & Servant (2d Ed.) vol. 6, p. 6396. In the case now before the court it is difficult to discover that the primary purpose was the imparting of. instruction in a trade by a master. And we are
The Stat. 3 W. & M. c. 11, § 8, enacted that:
“If any person shall be bound an apprentice by indenture, and inhabit in any town or parish, such binding and inhabitation shall be adjudged a good settlement.”
And in The King v. Banbury, 5 B. & Ad. 176, a pauper was bound an apprentice to one A., whom he served half a year. Then A. failed in-business and told the apprentice he might go and work for one B., who lived in another parish. This the apprentice did for a year in B.’s parish, and then with the consent of A., his first master, he went to work "for C. in a third parish. It was held that the inhabitation of the apprentice in the second and third parishes was connected with the apprenticeship and being so connected that he thereby gained settlements in those parishes by virtue of the statute. We are not, however, much aided in our inquiries by decisions as to the meaning of the word “settlement” in construing pauper acts. When it is said that a person has a “settlement” in a particular town or county, the meaning seems simply to be that he has a right to support in case of need from the town or county in which he has his “settlement.” It is plain that “settlement” is not synonymous with “domicile.” The statutes on the subject usually provide that a person who shall reside in any poor district for a given period of one, two, or more years and who fulfills the other requirements of the statute shall thereby acquire a legal settlement therein. A person may have to reside for years in a place to acquire a settlement therein although he may acquire a domicile at such place as soon as he arrives. The length of time a person resides in a place to which he goes with the animus manendi is immaterial as respects his acquisition of a domicile. Winans v. Winans, 205 Mass. 388, 91 N. E. 394, 28 L. R. A. (N. S.) 992. But it is of controlling importance as respects his right to claim a settlement. And in Bellefonte v. Somerset County, 168 Pa. 286, 31 Atl. 1086, it was held that a settlement is gained where the services are performed under a contract of hiring, although the pauper has 'his residence elsewhere. It would hardly be held that a man’s domicile was where he worked as distinguished from the place where he had hjs abode. It is pointed out in 22 Am. & Eng. Encyc. of Law, p. 954, that the term “residence” as used in the poor laws so as to confer a settlement is not synonymous with “domicile” as used in international law. And see to the same effect Inhabitants of Jefferson v. Inhabitants of Washington, 19 Me. 293, 300, 301.
It does not seem to be of controlling importance therefore that the courts have held that an emancipated minor may acquire a “settlement” in his own right (Oldtown v. Falmouth, 40 Me. 106, 108; West Gardiner v. Manchester, 72 Me. 509); or that a minor bound to service in a written indenture by the overseers of the poor cannot acquire a settlement in his own right inasmuch as he has not been emancipated
It has been held that the domicile of a ward is not that of a guardian where they are living in separate places. Louisville v. Sherley, 80 Ky. 71; Chester v. James, 2 Watts & S. (Pa.) 568. But in White v. Howard, 52 Barb. (N. Y.) 294, where the father domiciled in Connecticut appointed as the testamentary guardian of his child a person living in New York and the child on the death of the father went to live with the guardian in New York, it was held that the ward’s domicile was in the latter state. “It is manifest, from the will,” the court said, “that her father expected and intended that she should, upon and after his death, during her minority, reside in New York, under the care and protection of her guardian residing there. It is evident that her father intended, by his will, upon and after his death, to change her domicile from Connecticut to New York.” And a testamentary guardian nominated by the father has the same control over the ward’s domicile that the father had, and may in good faith change it either from one state to another state or from one county to another county in the same state. Lamar v. Micou, 112 U. S. 452, 471, 26 L. Ed. 774; Id., 114 U. S. 218, 5 Sup. Ct. 857, 29 L. Ed. 94; Wood v. Wood, 5 Paige [N. Y.] 595, 605, 28 Am. Dec. 451; In re Benton, 92 Iowa, 202, 60 N. W. 614, 54 Am. St. Rep. 546; Bailey v. Morrison, 4 La. Ann. 523; 21 Cyc. 63. A testamentary guardian has the custody of the child by the express authorization of the father and so does the master as respects the apprentice. But the testamentary guardian has, what the master has not, the custody of the ward’s real and personal estate until the ward reaches his majority. In this particular the master, however, has no disadvantage over the parent, as the latter has no control over the general property of his child. The parent has a right to the minor’s labor and earnings, and so has the master. The right of the parent to- change the child’s domicile does not therefore depend upon or grow out of any power over the property of the child. It would seem that it must depend upon his having the parent’s right to the custody and control of the child. On the whole, therefore, we are inclined to hold and do hold that where a parent surrenders as in this case the care and custody of his minor child during his minority to one who agrees to assume such care and custody and to provide for such child for the whole of the remaining period of his minority the maintenanee> education, and care of the infant to the same extent as his parents would have been bound to provide them if no such agreement had been made, the child acquires the domicile of the person who assumes this responsibility. In this case the custody was as fully surrendered to the son in New York by the parent in Pennsylvania, as it was to the testamentary guardian residing in the state of New York by the parent living in Connecticut in White v. Howard, supra, and we conclude that the intention of the parent was, in this case as it was held to be in that, that the child should acquire a New York domicile. Such an agreement creates something more than the ordinary relation of master and servant. And whether or not it created the technical relation of master and apprentice it imposed upon the one
A woman on marriage acquires the domicile of her husband, but on his death her domicile of origin does not revive, but she retains her husband’s last domicile, until she changes it. Dicey on Domicile, p. 7. And upon marriage the maiden settlement of the wife is said to become extinct, and does not revive on the death of her husband, but she retains the settlement of the husband. No reason suggests itself why the same principle would not be applicable to the facts of this case, and no authority asserting a contrary doctrine has come to our notice.
“No person shall ride upon or against any loaded car, cage or gun boat in any shaft, slope or plane in or about a mine or colliery.” Article 12, rule 16, <P. L. 197).
And this provision the plaintiff was violating when the accident happened. The record, however, discloses that plaintiff, 'if he told the truth, was riding on the -car in obedience to instructions given him by the driver boss of the mine and also by the slope runner whose duty it was to take the cars up and down the slope, and by a third man who was the engineer in charge of an electric engine which operated the cable that pulled the cars up and-down the slope. In the matter of these instructions the plaintiff was contradicted by all three. But plaintiff’s testimony was that he rode on these cars every day and 20 or 30 times a day. That he had ridden on the cars was testified to by several witnesses. The plaintiff’s claim is that defendant was negligent in that it maintained and allowed a method of having the work in the mine done which was not only prohibited by statute but which the miner himself was forbidden to use, and which was manifestly dangerous. In Maguire v. Philadelphia & Reading Coal & Iron Co., 255
•‘it would be idle to contend that disregard oí these plain provisions of the statute in the way indicated would not be negligence on the part of the owner or operator of the mine.”
In the instant case it is enough to say that the order given to plaintiff by those in authority over him to ride upon the cars in disregard of the statute was negligence, and under the provisions of section 1 of the Pennsylvania Act (Act June 10, 1907 [P. R. p. 523]) it is expressly provided that in actions brought to recover from an employer for injury suffered by his employé the negligence of a fellow servant of the employé shall not be a defense “where the injury was caused or contributed to by any of the following causes, namely: * * * The negligeñce of any person to whose orders the employé was bound to conform, and did conform, and by reason of his conforming thereto, the injury or death resulted; the act of any fellow servant, done in obedience to the rules, instructions, or orders given by the employer, or any other person” with “authority to direct the doing of said act.”
The defendant insists that this negligence was not the proximate cause of the injury. It asserts that the sole and proximate cause of plaintiff’s injuries was the defective and unsafe condition of the railroad track and roadbed at the place of the accident. And it seeks to avoid responsibility for this unsafe condition of the track and roadbed by virtue of the statute of Pennsylvania which relieves the mine owner from liability for the negligence of the mine foreman where it has committed its mine and the underground workings, as had been done in this case, to the charge of a certified mine foreman. The trouble with this is that we do not agree that the sole and proximate cause of plaintiff’s injuries was the unsafe condition of the track. The injury. which plaintiff suffered did not result solely from the negligence of the mine foreman as respects the track, but was directly contributed to by the negligence of certain employés of the defendant to whose orders the plaintiff was bound to conform. Where two concurring causes contribute, to an injury to an employé, the fact that the master may not be responsible for one of them does not absolve him from liability for the other for which he is responsible. Wilmington Star Mining Co. v. Fulton, 205 U. S. 60, 75, 27 Sup. Ct. 412, 51 L. Ed. 708. The case of Maguire v. Philadelphia & Reading Coal & Iron Co., supra, upon which plaintiff relies, is readily distinguishable from the case now before the court.
The other assignments of error need not be specifically referred to. We have given them due consideration and find in them no occasion for reversing the judgment. The case was fairly submitted to the jury, and we see no reason why the verdict should be disturbed.
Judgment affirmed.