Appelt v. Whitty

• Decision Date: 31 January 1961
• Docket Number: No. 13112.,13112.
• Citation: 286 F.2d 135
• Parties: Lawrence Henry APPELT, a Minor, by Henry C. Appelt, His Guardian, Plaintiff-Appellant, v. Thomas M. WHITTY, Defendant-Appellee, and Otis E. Brown and Dorothy Brown, individually, and d/b/a Bon Bon Tap; William J. Heuser and Emily Heuser, Additional Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

286 F.2d 135 (1961)

Lawrence Henry APPELT, a Minor, by Henry C. Appelt, His Guardian, Plaintiff-Appellant, v. Thomas M. WHITTY, Defendant-Appellee, and Otis E. Brown and Dorothy Brown, individually, and d/b/a Bon Bon Tap; William J. Heuser and Emily Heuser, Additional Party Defendants-Appellees.

No. 13112.

United States Court of Appeals Seventh Circuit.

January 31, 1961.

Philip H. Corboy, Gerald M. Chapman, Chicago, Ill., for appellant.

David J. Krupp, Koven, Koven, Salzman & Homer, Charles N. Salzman, Paul Homer, Jerome Marks, Chicago, Ill., for defendants-appellees.

Before HASTINGS, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

Lawrence Henry Appelt, as plaintiff, brought action, to recover damages for personal injuries, against Thomas M. Whitty, as defendant. Subsequently, Henry C. Appelt, as his guardian, was named as additional party plaintiff; and Otis E. Brown and Dorothy Brown, individually and d/b/a Bon Bon Tap; and William J. Heuser and Emily Heuser; were named as additional party defendants. The caption of the first amended complaint at law reads as shown above.

In his first amended complaint, plaintiff charged defendant Thomas M. Whitty with negligent operation of his motor vehicle, as a proximate result of which the minor plaintiff was allegedly injured. Damages were sought in the amount of $20,000 each from the Browns and the Heusers and $150,000 from Whitty. In a second count, plaintiff complained that the Browns operated a tavern, in premises owned by the Heusers who leased to the Browns, in which tavern, defendant Whitty had allegedly become intoxicated, and while so intoxicated, had operated his motor vehicle to plaintiff's injury.

The complaint was again amended to state that Lawrence Henry Appelt, Dixie Appelt, his wife, Scott Appelt, his son, and Henry C. Appelt, his guardian, were all citizens and residents of the State of Michigan, whereas the defendants were all citizens and residents of the State of Illinois. At no time did the complaint, as twice amended, indicate whether Henry C. Appelt was a statutory or court-appointed guardian.

After the minor plaintiff's deposition had been taken, all the defendants moved to dismiss the cause for want of jurisdiction in the District Court, as there appeared to be no diversity of citizenship between the parties. They relied entirely on statements made in the course of the deposition. Plaintiff filed a motion in opposition to defendants' motion to dismiss, in which he also relied on statements made in the same deposition.

Specifically, plaintiff refers to statements that he and his wife had no Illinois driver's license or plates, and that both held Michigan driver's licenses; that plaintiff was only a temporary resident of Chicago, during a training program operated by his employer, International Business Machines of Chicago, Illinois, having been engaged through a branch office in Grand Rapids, Michigan; that he was taken to a hospital in Michigan for completion of his cure after the injuries; that he remained in his father's home while recuperating, and continuing to visit physicians in Michigan; that he purchased no permanent furniture for his residence in Chicago. He also had stated that in January, 1959, he and his wife occupied a furnished apartment in Chicago on a month to month tenancy; that at the end of April, 1959, he, his wife, and their infant son, moved into an unfurnished apartment in Chicago, which plaintiff furnished completely with a rented stove and refrigerator and with furniture from his parents and in-laws. He had registered with Chicago utilities companies and had a telephone installed. At the time of the deposition, April 21, 1960, he was still occupying that apartment. His wife, who worked from time to time during the period they lived in Chicago, remained in the apartment while plaintiff was away. The rent was paid continuously while he was gone. He occupied the apartment on a written lease for one year. He stated that he had an agreement with his landlord whereby he would be allowed to break his lease if his employer transferred him out of Chicago. He testified that there was no set termination time for the training program. At the conclusion of the training program, he might be assigned to work in some other city, or to remain in Chicago; there was no...