Allen v. Southern California Ry. Co.

• Decision Date: 21 October 1895
• Docket Number: 605.
• Citation: 70 F. 370
• Parties: ALLEN et al. v. SOUTHERN CALIFORNIA RY. CO.
• Court: U.S. District Court — Southern District of California

70 F. 370

ALLEN et al. v. SOUTHERN CALIFORNIA RY. CO.

No. 605.

United States Circuit Court, S.D. California.

October 21, 1895

This was a motion for a new trial. The action was brought by plaintiffs to recover damages for the death of their husband and father, alleged to have been occasioned by the defendant's negligence. Among the issues raised by the pleadings and submitted to the jury was that of the citizenship of the plaintiffs. One of the plaintiffs, Mrs Allen, testified in terms that she and her minor children the other two plaintiffs, were, at the commencement of the action, citizens of Missouri. On this issue of citizenship the court instructed the jury as follows:

'(1) The plaintiffs, who are Elia Allen, the widow, and Edith May Allen and Earl Truman Allen, minor children, of Russel T Allen, deceased, have brought this action to recover of the defendant, the Southern California Railway Company, damages for the death of said Russel T. Allen.

'(4) The pleadings have raised a preliminary issue affecting the jurisdiction of the court, which will first claim your attention. To the maintenance of this action, diverse citizenship of the parties is essential; in other words, and more specifically, this court, being a federal court, is without jurisdiction unless, at the commencement of the action, June 18, 1894, plaintiffs were citizens of the state of Missouri, and the defendant a citizen of the state of California. A corporation, within the meaning of the law, is a citizen of the state where created, and there is no question in this case but that the defendant is a citizen of the state of California. The jurisdictional issue relates to the citizenship of the plaintiffs, and is whether or not, at the commencement of the action, they were citizens of the state of Missouri. On this branch of the case the court instructs you that during the lifetime of the deceased Russel T. Allen, the citizenship of all the plaintiffs was determined by his citizenship, and that since his death the citizenship of the minor children of himself and plaintiff Elia Allen must be determined by her citizenship.

'(5) The court further charges you that, to constitute a person a citizen of a particular state, such person must have his or her actual residence therein, with the intention that it is to be a permanent residence. If, therefore, you believe from the evidence that the deceased, Russell T. Allen, when he came to San Bernardino, California, in 1892, came for a temporary purpose (for instance, on account of his wife's ill health), and did not intend to make his permanent residence in this state, but intended eventually to return to Missouri as the place of his permanent residence, and that there was never any change on his part of such intention, and that Elia Allen, the widow of said deceased, after his death, and until the commencement of this action, all along had the same intention as to her permanent residence; or if you believe from the evidence that said widow, when she went back from California to Missouri, in March, 1894, although her citizenship at that time may have been in California, and her motive was to give jurisdiction to the federal courts, took up her actual residence in Missouri, with the intention that such residence should be permanent, you will find that plaintiffs were citizens of Missouri at the commencement of this action, and your verdict will be in their favor on this issue. If, however, you believe from the evidence that said deceased, when he came to San Bernardino, California, in 1892, had, or at any time thereafter formed, the intention to make his permanent residence in California, or if you believe from the evidence that said widow, while residing in California, at any time after the death of said Russel T. Allen and prior to the commencement of this action, intended that her residence in California should be permanent, and that said return to Missouri of said widow in March, 1894, was not a bona fide removal, as hereafter explained, then you will find for the defendant on the issue of plaintiffs' citizenship; that is, that plaintiffs were not citizens of Missouri at the commencement of the action.

'(6) The court has instructed you that, if said widow of the said deceased, when she went back to Missouri, in March, 1894, although she may have then been a citizen of California, did so with the intention of making her permanent home in said state of Missouri, and took up her actual residence there, then such removal, whatever may have been the motive which prompted it, was bona fide, and plaintiffs thereby became citizens of Missouri. In this connection, however, the court further instructs you that, if said widow went back to Missouri at the time mentioned in order to enable plaintiffs to avail themselves of the jurisdiction of the federal court, and not intending to reside permanently in Missouri, but intending, for that purpose, to return eventually to California, then such removal was not bona fide, but a fraud upon the law, and plaintiffs would not thereby become citizens of Missouri.

'(7) If you find that the plaintiffs were not citizens of Missouri at the commencement of the action, your verdict will be that you find for the defendant on the issue of the citizenship of the plaintiffs, and in that event you need not make further findings. If, however, you find,' etc.

On this issue, the verdict of the jury was for the defendant. The other facts are stated in the opinion of the court.

Murphey & Gottschalk and Harris & Vickery, for plaintiffs.

W. J. Hunsaker, for defendant.

WELLBORN, District Judge (after stating the facts).

The grounds of this motion, as argued in the briefs of the respective parties, are: First, insufficiency of the evidence to justify the verdict; second, misconduct of defendant's attorney in his argument to the jury. Among the grounds formally stated in the notice of motion is also that of newly-discovered evidence. This ground, however, is not urged by plaintiffs in their brief, and, I presume, for the reasons that the evidence referred to is largely cumulative, and besides there is no showing that any diligence was used to produce it upon the trial.

Under the first of the two grounds above stated, namely insufficiency of the evidence to justify the verdict, plaintiffs contend that the diverse citizenship of the parties, or, more specifically, the citizenship of plaintiffs in Missouri, was prima facie established, and there was nothing in rebuttal, and therefore the verdict was against the strength or weight of the evidence. If the premises indicated are correct, the conclusion stated necessarily follows. The salient inquiry, therefore, is, did the plaintiffs establish, prima facie, this branch of their case, and was there an absence of rebutting testimony? Citizenship, it must be remembered, is a mixed question of law and fact, and not unfrequently complicated and difficult of solution. In such cases the testimony of a party, however honestly given, that his or her citizenship is in a certain state, such testimony being, not the statement of a simple fact, but an ultimate conclusion, involving the construction and application of legal rules, is far from being conclusive, when the particular facts upon which the citizenship depends are in evidence. The jury, therefore, were not bound to accept and act upon Mrs. Allen's statement that she and her children, at the commencement of this action, were citizens of Missouri; on the contrary, it was their right and duty to find upon the issue of citizenship from all the evidence in the case. The first question for their determination was whether or not there had been a transfer of plaintiffs' citizenship from Missouri to California. On this question they...