Walden v. Broce Construction Company, 8195.
| Decision Date | 08 March 1966 |
| Docket Number | No. 8195.,8195. |
| Citation | 357 F.2d 242 |
| Parties | D. H. WALDEN, Appellant, v. BROCE CONSTRUCTION COMPANY, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John B. Ogden, Oklahoma City, Okl., for appellant.
Clayton B. Pierce, Oklahoma City, Okl., for appellee.
Before BREITENSTEIN and HILL, Circuit Judges, and LANGLEY, District Judge.
This appeal is from an order of the lower court dismissing the action for lack of jurisdiction because there was no diversity of citizenship between the parties.
The appellant, D. H. Walden, a medical doctor, filed a negligence action in the Western District of Oklahoma against Broce Construction Company, appellee, claiming damages for personal injuries sustained in an automobile accident and alleging diversity of citizenship as grounds for federal court jurisdiction. In his complaint Dr. Walden alleged that the Broce Construction Company was an Oklahoma corporation, which the appellee admitted in its answer, and that he was a resident and citizen of Texas, which the appellee denied. The sufficiency of the amount in controversy was not challenged. Following a hearing to determine the issue of diversity, the District Court found that the appellant was an "actual citizen of Oklahoma at the time the action was filed and had never established bona fide citizenship in the state of Texas", and dismissed the action "because of lack of diversity of citizenship between the parties". It is the appellant's position here that the evidence introduced at the hearing does not support the finding and order.
Only one witness testified, the appellant himself. Dr. Walden stated that he established citizenship in Texas in October of 1961, and local residence in Jefferson County, Texas in June or July of 1962. He changed his citizenship in 1960, he said, from Oklahoma to California for six or seven months, and then from California to Texas. From his response to inquiry concerning acts tending to support or contradict this statement regarding his citizenship, it appears that prior to November 8, 1958, Dr. Walden had lived in Oklahoma for a number of years. On that date he was involved in an automobile accident in Creek County, Oklahoma. His home was in Tulsa, Oklahoma at the time, where he had established a private hospital corporation, the Walden-Page Memorial Hospital, Inc., which operated a hospital under the name Tulsa General Hospital. It is not entirely clear who was actively in charge of the hospital, but his wife was executive secretary of the corporation and Dr. Walden was furnished offices in and had use of its facilities, and lived with his family in an apartment supplied by the hospital. Also, he had the use of a cabin maintained by the hospital on the shore of a nearby lake. Some weeks or months after the accident — just how long cannot be ascertained from his testimony — Dr. Walden moved to a house in Bristow, in Creek County, Oklahoma, and later to a trailer house in the same county but just over the line from Tulsa County. Whether his family accompanied him in these moves is not indicated, but while he was there he filed suit in the State Court in Creek County for damages growing out of the accident. Sometime after the suit was filed, he went to California with part of his family and remained there six or seven months. He then came back to Creek County to prepare for and participate in the trial of his case. After the trial, in May of 1960, he went again to California, this time, he says, changing his citizenship to that state. After another period of six or seven months in California he came back to Oklahoma, to Tulsa, apparently during the summmer of 1961, for the purpose of arranging for the lease of the hospital. It is not clear what arrangements were made, but after a few months, in October of 1961, he and Mrs. Walden went to Galena Park, Texas, near Houston, where Mrs. Walden had secured employment in a hospital. A few months later they returned to Tulsa, in June or July of 1962, at which time Mrs. Walden apparently took charge of the hospital and moved into the apartment furnished the Waldens by the hospital. Dr. Walden states, however, that he went back to Texas, to Beaumont, in Jefferson County, where he stayed with his son and his son's family and where he resided when this action was filed on January 30, 1963. After his wife returned to Tulsa and Dr. Walden went to live with his son, he made what he called occasional trips to Tulsa to visit his wife and their two children who were living with her and going to school. On these trips he stayed for periods of from two days to a week or so. And...
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