The opinion of the court was delivered by: John E. Miller, Judge.
This cause was originally filed in the State Court and removed
to this court on the ground of diversity of citizenship and
jurisdictional amount. There is now before the court a motion to
remand alleging that the court is without jurisdiction because
one of the plaintiffs, Mariam Taylor Gaylord, and some of the
defendants were citizens of the same state, California, at the
time the suit was commenced. Defendants, in the removal petition,
alleged that this plaintiff was a citizen of Arkansas, in which
event complete diversity would be present, and thus, the
citizenship of plaintiff, Mariam Taylor Gaylord, is the issue
raised by the motion to remand.
The parties have filed depositions and briefs in support of
their respective contentions, which the court has read and
The United States District Courts have original jurisdiction of
controversies involving more than $3,000.00 between "citizens" of
different States. Title 28 United States Code Annotated § 1332.
Citizenship, as used here, means domicil. Williamson v. Osenton,
232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758; Garberson v. Garberson,
D.C.N.D.Iowa, 82 F. Supp. 706, 707. Under the common law every
person has a domicil, either assigned to him by law or, if he is
capable under the law of so doing, acquired by choice. Leflar,
Conflict of Laws, Sec. 13. This may be accomplished by physical
presence at a new place coinciding with the state of mind
regarding the new place as home, or as otherwise stated, with the
present intention of residing there indefinitely. Williamson v.
Osenton, supra; Williams v. North Carolina, 325 U.S. 226, 229, 65
S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Garberson v.
Garberson, supra; Leflar, Conflict of Laws, Sec. 13.
The question of domicil is one of mixed law and fact. In this
case, the actual occurrences are not in dispute and disclose that
Mariam Taylor Gaylord, hereinafter referred to as plaintiff,
lived in Hot Springs, Arkansas, until the time of her marriage,
December 28, 1927, to Edward C. Gaylord. Thereafter, they moved
to Chicago and lived there until 1934, at which time they
returned to Hot Springs, where they lived until 1944. From 1934
until 1944, Mr. Gaylord and the plaintiff operated a dairy, and
he was employed at various times by the Department of Interior
and at an aluminum plant in Arkansas. Plaintiff did no outside
work during this period.
Mr. Gaylord stayed in Hot Springs from May, 1945 until
November, 1946. During the period between December, 1945, and
November, 1946, he worked for the Methodist Hospital. Plaintiff
was employed by the same hospital from October, 1945, until
November, 1946, and thereafter accepted employment in the office
of Dr. Warren W. Chamberlain, a Hot Springs surgeon, where she
has worked continuously since that time to the present.
After leaving his employment in Hot Springs with the Methodist
Hospital, Mr. Gaylord returned to Puente, California, moved into
the home of his son-in-law, and for a time operated a meat market
in his son-in-law's grocery store. In December, 1947, he returned
to Hot Springs to visit his wife for six weeks, and in January,
1948, returned to California to operate a service station in
partnership with his son-in-law. Mr. Gaylord registered in
California as a voter and has voted there; pays his personal
taxes there; makes his income tax returns in that state; was a
charter member of the Lion's Club in Puente; lives as a member of
his son-in-law's family in the latter's home; and regards
California as his present home.
Plaintiff, since returning to Hot Springs in 1945 has lived in
her mother's home in that City. Both she and her husband paid an
Arkansas Poll Tax for the year 1945 and voted in the 1946
elections. Plaintiff assessed her personal property in 1945 in
Arkansas and has paid the tax thereon each year, although she has
not reassessed since then. She has purchased a poll tax for
herself and her husband each year, including 1949, and she has
voted each year in Arkansas. In September of 1946, plaintiff
obtained a Notary Public's commission for Garland County, taking
the oath to support the Constitution of the United States and of
the State of Arkansas, and has been acting in this capacity since
that time, and is now so acting. Plaintiff filed a separate
income tax return for 1947 in Arkansas, but for 1948, Mr. Gaylord
filed a joint return for both himself and plaintiff in
Plaintiff's marital relations have at all times been amicable.
She has returned to California for approximately three weeks each
year since 1947, during her vacation from her work, and in regard
to her state of mind, plaintiff, in her deposition, stated: "I
always claim California as my home, we always planned to make
California our home when conditions are so that we can."
As to Mr. Gaylord, the facts disclose that, at the time this
suit was commenced in this court, he was physically present in
California and did regard California as his home, and the court
concludes that he was domiciled in California.
This raises the first question before the court. Plaintiff
contends that being a married woman on amicable terms with her
husband her domicil is thereby fixed at the same place as his.
Unquestionably this was true under the old common law. Leflar,
Conflict of Laws, Sec. 14, for citation of authorities. However,
the reason for this rule was the then prevalent but now outmoded
view of the husband and wife as one legal entity. By adjudication
and legislation the "disabilities" of married women have been
almost universally removed so that in all practical respects the
husband and wife stand on equal footing as regards control over
the other. As stated by Mr. Justice Holmes in Williamson v.
Osenton, supra, 232 U.S. at page 625, 34 S.Ct. at page 443, 58
L.Ed. 758: "The only reason that could be offered for not
recognizing the fact of the plaintiff's actual change, if
justified, is the now vanishing fiction of identity of person.
But if that fiction does not prevail over the fact in the
relation for which the fiction was created there is no reason in
the world why it should be given effect in any other. * * * We
see no reason why the wife who justifiably has left her husband
should not have the same choice of domicil for an action for
damages that she has against her husband for a divorce."
It is true that the first deviations from the old rule appeared
in divorce cases, in which
instance the "home" was destroyed and there was clearly no reason
for the fiction of one. The accepted theory of jurisdiction to
grant divorces at the domicil of either required this result.
See, Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87
L.Ed. 279, 143 A.L.R. 1273. However, at the present time there
appears to be no sound reason for limiting the right of a married
woman to acquire a separate domicil. Restatement, Conflict of
Laws, Sec. 28, provides: "If a wife lives apart from her husband,
she can have a separate domicil."
And, Comment (a) thereunder reads: "The acquisition of a
domicil by a person legally capable of changing his domicil
depends upon his physical presence in a place with intent to make
that place his home. When a married woman was under such
disabilities that she was not capable of doing many acts
involving legal consequences for herself, it was natural that a
court should declare that she could not acquire a domicil apart
from her husband. With the change in the status of the married
woman so that few, if any, of her common law disabilities remain,
the determination of her domicil is based upon the same tests
employed to determine the domicil of any other person who may act
It should be noted that the court views this as a federal
question involving determination of its jurisdiction under the
provisions of the Constitution and Federal Statutes, and
therefore, the court ...