*1 any assump- upon which existed dation indulged about the reliabil- be tion could entry.
ity of the Phillips v. Neal Circuit Sixth Smith and identity and
Dutton, held that has reports qualifications authors of introduction
such critical factors that entry anonymous into hospital of an evidence
records violates defendant’s to confronta-
Sixth Amendment reliability anonymous
tion. The en- in a file is no
tries Selective Service anonymous self-proving
more than an
entry hospital in a record.
I would reverse. WEBB, Appellant,
Neeta NOLAN, M.D., Appellee.
Robert E.
No. 72-2250.
United States Webb, pro Neeta se. Fourth Circuit. Ralph Stockton, Jr., M. Winston-Sal- May 8, em, (J. Hudson, N. C. Robert Elster and Sept. 18, Petree, Stockton, Robinson, Stockton &
Winston-Salem,
C.,
brief),
ap-
N.
pellee.
BRYAN,
Judge,
Before
Senior Circuit
WIDENER,
and WINTER and
Circuit
Judges.
PER CURIAM:
Webb, pleading
a resi-
California, sought
dent
citizen of
damages in the District Court from Rob-
ert E.
a resident and citizen of
medical mal-
practice,
laying jurisdiction of the ac-
tion on
After
evidentiary hearing,
court,
the trial
August 28, 1972,
the defend-
sustained
dismiss, finding
ant’s motion the evi-
plain-
dence insufficient to establish the
*2
regularity.
rented an
She
than
substantial
apartment
elsewhere
tiff’s
acquired
and
action was
the
when
appeals.
furniture.
claimed California
She
Plaintiff
commenced.
she filed
of her
the state
briefs, oral
Upon
of the
consideration
tax returns.
income
record,
this court
and the
finding
District
the
that
of
cludes
California, Miss
After her removal to
clearly erroneous.
held
cannot be
family
to live in North
continued
Webb’s
judgment
affirmed
is
The
disputed
it
that she
and
is not
Judge.
opinion
upon
of the District
during
return to
North Carolina
(MDNC
F.Supp. 418
v.Webb
After the death
her summer vacations.
1972).
family,
ob-
of other members of her
ownership
family home in
tained
Affirmed.
for
1961 which she used thereafter
vaca-
holidays.
and
tions
Judge (dissenting):
WINTER, Circuit
August 31,
plaintiff sued de
On
The
court found and concluded
malpractice allegedly
com
fendant
not a citizen
that Miss
Webb was
to treat her
mitted when he undertook
California,
but was a citizen of
of
during an earlier
when she was
occasion
Carolina, and
the district
therefore
During
in North Carolina.
the trial of
jurisdiction
court
lacked
of her suit
began March, 1971,
the case which
against defendant,
a
of
citizen
voluntary dis
submitted
Miss Webb
to a
diver-
because there was
missal. She returned to
majority
sity
treats
of
The
July, 1971,
in
including
and
there to and
remained
finding
a
of fact and concludes
this as
14, 1972,
March
filed
when she
clearly erro-
that it cannot be held to be
purpose
case.
Her avowed
me,
finding
solely
is not
neous.
returning
remaining
and
was to con
fact,
ques-
one of
but rather
mixed
is a
litigation
duct
conclud
this
which she
fact and
tion of
law. To the extent
proceed pro
ed to
took one
se. She
factual,
finding
I
it was
think that the
year’s
pay
leave of
absence without
legal
clearly erroneous,
and as a
teaching position.
her California
I
conclusion
think it
incorrect.
teacher,
she was a tenured
right
respectfully dissent.
position
at
to return
the same
July, 1971,
appears to be
Until
pay
following year.*
the same
dispute
no
a citizen
that Miss Webb was
suit on March
When
of
She
born there
California.
had been
although living
was a citizen
that she
and
a substan-
early
and
part
the defendant
her
and
tial
childhood
pleadings bore
of North Carolina. Her
and else-
adulthood
North Carolina
address,
where,
her
there is
she returned to California
physi-
question
then
position in
no
cally
but that
a
1954 and obtained
homestead,
residing
family
public
opened
a
a California
school. She
largely
twelve-room
which was
and maintained a
with a
diversity of citizen-
to vote
furnished. When
bank. She
ship
contested,
stren-
in California and
there with
had voted
*
ing position
by ques-
Although plaintiff
appears
very
from her
a
in-
was extracted
during
woman,
relatively
telligent
oral
is
unschooled
tions
same
is
respect
law,
presentation
her
true with
certain
the other
effective
opinion.
factual
statements
When
has suffered.
case
Before the district
interrog-
questioned,
she did not seem to demonstrate
she declined to
a number of
answer
implications
highly
atories,
an awareness of
the answers
which were
citizenship,
questions,
question
and her
to the court’s
answers
relevant
to the
requir-
questions were not
with her
inconsistent
and defendant did
seek
order
interroga-
pleadings
responses
and formal
about
to answer.
The information
the extent
she answered
teach-
tories to
them.
to return to her California
plaintiff’s
every
statement
uously
inten- Of course a
of his
insisted
returning
California,
that her
is
be viewed with cir-
tion of
holiday
cumspection
perhaps
a
cre-
home was
plaintiff’s acts,
house,
to a
was still
dence
because
vacation
many
“living”
are a
maintained
instances
more relia-
California.
ble indicator of his true state of mind
in California
account
bank
*3
furniture,
mostly
than a mere verbal statement.
But
in
personal
property,
case,
persuasive
to
tak-
also contracted
acts
had
stored there. She
by plaintiff
building
en
con-
buy
counter to the
lot
payment.
that she had not surrendered Cal-
clusion
made a
down
substantial
of North
ifornia as
favor
to effect a
seems clear
The law
had not severed connec-
Carolina.
citizenship
change
one
to
state
regard
per-
to
tions with California
residence in the
must be
another
there
employment. At the time suit was
manent
intention to remain
domicile and an
new
absence,
filed,
she was on leave of
indefinitely.
permanently
or
there
argument of this
at the
she assured us
presence or
ab
law is clear also
po-
returned
to
between
sence of
sition in
resumed
school
parties
the time
is to be tested as of
the fall of 1972
v. Dixie Car
is filed.
suit
Gaines
argued except
there when her case was
riers,
1970);
Inc.,
(5
permanently supports a find-
conclude that the record latter factor. of Cal-
clude that she remained
ifornia, I reverse. *4 America, STATES
UNITED Appellee, VARIO, Appellant.
Paul 1059, Docket
No. 73-1592.
United States Court
Second Circuit. July 1973. Sept.
Certiorari Denied Jan.
See