Bjornquist v. Boston & A.R. Co.

• Decision Date: 21 June 1918
• Docket Number: 1338.
• Citation: 250 F. 929
• Parties: BJORNQUIST v. BOSTON & A.R. CO.
• Court: U.S. Court of Appeals — First Circuit

250 F. 929

BJORNQUIST v. BOSTON & A.R. CO.

No. 1338.

United States Court of Appeals, First Circuit.

June 21, 1918

Action of tort, originally commenced in the superior court for the county of Suffolk, by writ dated January 22, 1900, for injuries sustained on August 12, 1899, in consequence of the plaintiff jumping from a freight car of the defendant, owing to a brakeman 'hollering' to him to 'get off there or I'll break your neck,' but no battery was committed on the plaintiff by the brakeman. The plaintiff, in jumping, got under the car and suffered the loss of his legs. The case was tried in the state court to Harris, J., and a jury, and a verdict was returned for the plaintiff, and damages assessed in the sum of $22,000. The case was subsequently taken, on defendant's exceptions, to the Supreme Judicial Court for the commonwealth, and that court held, as matter of law, that the plaintiff was not entitled to recover, that a verdict should have been ordered for the defendant, and sustained the defendant's exceptions. No further proceedings were had in the state court. See Bjornquist v. Boston & Albany R.R. Co., 185 Mass 130, 70 N.E. 53, 102 Am.St.Rep. 332.

Subsequently the plaintiff, after the death of his parents in Massachusetts, went to live with an aunt in the state of Maine, and while residing there he brought suit, for the same cause of action, in the United States District Court for the District of Massachusetts, by writ dated April 17, 1911, and trial was had to Morton, J., and a jury. At the close of the evidence the court ordered a verdict for the defendant, and the plaintiff seasonably excepted. The case was subsequently argued, on plaintiff's exceptions, to the United States Circuit Court of Appeals for the First Circuit, and the plaintiff's exceptions were sustained.

Samuel A. Fuller and Charles Toye, both of Boston, Mass. (Bernard J Killion, of Boston, Mass., on the brief), for plaintiff in error.

Lowell A. Mayberry, of Boston, Mass. (George L. Mayberry and George P. Furber, both of Boston, Mass., on the brief), for defendant in error.

Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge.

BINGHAM Circuit Judge.

This is an action of tort for personal injuries sustained by the plaintiff through the alleged willful, reckless, and wanton conduct of the defendant, its agents, and servants.

The defendant filed a plea in abatement, setting forth the pendency of a prior suit for the same cause of action in the superior court for the county of Suffolk and commonwealth of Massachusetts. It also filed an answer, denying each and every allegation of the plaintiff's writ and declaration and each and every count thereof, and further alleged that the plaintiff was guilty of negligence which contributed to his injury. No plea in abatement or answer in abatement, setting forth that the plaintiff was a citizen and resident of Massachusetts, was filed. Under the practice in Massachusetts, the question of jurisdiction must be raised either by a plea in abatement or an answer in abatement. Rev. Laws 1902, c. 173, Secs. 18, 19. And it is held that a plea to the merits waives all matters in abatement not taken in a plea or an answer in abatement. Craig Silver Co. v. Smith, 163 Mass. 362, 39 N.E. 1116. The plaintiff in his declaration alleged all the facts essential to federal jurisdiction. The allegation of these facts, prima facie, was true. If the defendant had filed a plea in abatement or an answer in abatement, it would have been necessary to have averred therein that the plaintiff was a citizen of the commonwealth of Massachusetts, and under that plea the burden of proof would have fallen upon the defendant. Adams v. Shirk, 117 F. 801, 895, 55 C.C.A. 25. Evidence, however, relating to the question of jurisdiction having been admitted at the trial, we think we should consider the case as though a plea in abatement or an answer in abatement raising the jurisdictional question had been filed. The burden of proof, however, still remains on the defendant on this issue.

The decisions in Lindsay-Bitton Live Stock Co. v. Justice, 191 F. 163, 111 C.C.A. 525, Roberts v. Lewis, 144 U.S. 653, 12 Sup.Ct. 781, 36 L.Ed. 579, and C., B. & Q. Ry. Co. v. Willard, 220 U.S. 413, 31 Sup.Ct. 460, 55 L.Ed. 521, are not applicable, as the practice prevailing in the jurisdictions in which they arose differs materially from that in Massachusetts.

The accident occurred on the 12th of August, 1899. The plaintiff was born at Worcester, Mass., April 29, 1891. He lived there up to the time of his mother's death, when he moved to Cambridge with his father, who died shortly thereafter. In the latter place he lived with his uncle, Alfred Wiggin, for about 5 years. It was while he was living in Cambridge that the accident occurred. Shortly after the accident his uncle moved to Arlington Heights, and the plaintiff continued to live with him until 1910. He then went to Maine to live with an aunt, intending to make his permanent home there. He was at this time 19 years old. He remained in Maine until the fall of 1912. The present action was brought April 17, 1911, while he was residing in that state. In the fall of 1912 his aunt and her husband left Maine and moved to Massachusetts, and he returned there with them.

In the District Court the jury was directed to return a verdict for the defendant. The plaintiff excepted, and this writ of error was prosecuted.

The defendant contends that, on the facts above stated, the District Court was without jurisdiction to entertain the action; that, the plaintiff having been born in Massachusetts, and his parents having been domiciled there at the time of their death, his residence and domicile continued during his minority to be in Massachusetts, notwithstanding his removal to Maine, and, the action having been brought before he reached his majority, the requisite diversity of citizenship was wanting, to confer jurisdiction on the District Court.

It is undoubtedly true that the general rule is that a minor is incapable of changing his domicile and acquiring a new one during his minority; that he has the domicile of his father, if living, and, if he is dead, that of the mother (Lamar v. Micou, 112 U.S. 452, 5 Sup.Ct. 221, 28 L.Ed. 751); that, if both father and mother are dead, by taking up his residence with his grandfather, or, if he is dead, with his grandmother, he may, in that way, acquire a domicile (Lamar v. Micou, 114 U.S. 218, 222, 5 Sup.Ct. 857, 29 L.Ed. 94).

The reason stated for the general rule is that a minor is non sui juris, which no doubt, as here applied, means that a person who is under the power and authority of another possesses no right to choose a domicile. Hart v. Lindsey, 17 N.H. 235, 43 Am.Dec. 597. Under the common law the father is the natural guardian of the minor, and entitled to his custody and control until he reaches majority; and the same is true of the mother (the father having died), and, if she is dead, of the grandfather. When either stands in the relation of natural guardian to the minor, he or she may change the domicile of the minor to another place within or without the state of his previous domicile. 14 Cyc. 843, 844. It would seem, however, that this doctrine of natural guardianship has never been extended to uncle or aunt, when they stand as next of kin to the minor. Munday v. Baldwin, 79 Ky. 121; Hiestand v. Kuns, 8 Blackf.(Ind.) 345, 46 Am.Dec. 481.

When the plaintiff went to Maine he was 19 years old. At that time he had neither father nor mother, nor, so far as appears, grandparents, living. The uncle with whom he had been living in Massachusetts was unable and apparently unwilling further to maintain a home for him. In this situation he determined to go to Maine and make his permanent home there with his aunt; and the question is whether a minor of his years of discretion may, under these circumstances, acquire a new domicile, or whether he is restricted to the domicile of his father at the time of his death.

None of the cases which have come to our attention have gone to the extent of holding that, under such circumstances, a minor who has attained years of discretion may not acquire a new domicile. In all of them, where it has been held that the minor may not acquire a new domicile of his own volition, it has appeared that he was of immature years, or that he was subject to the direction and control of a person standing in the position of a natural or statutory guardian. See Glos v. Sankey, 148 Ill. 536, 36 N.E. 628, 23 L.R.A. 665, 39 Am.St.Rep. 196; In re Benton, 92 Iowa, 202, 60 N.W. 614, 54 Am.St.Rep. 546; Sudler v. Sudler, 121 Md. 46, 88 A. 26, 49 L.R.A.(N.S.) 860, and note, Ann. Cas. 1913C, 1191; Churchill v. Jackson, 132 Ga. 866, 64 S.E. 691, 49 L.R.A.(N.S.) 875, and note, Ann. Cas. 1913E, 1203.

In Russell v. State, 62 Neb. 512, 87 N.W. 344, Estler a minor, 20 years and 5 months old, who up to that time had had his domicile in the state of New York, was emancipated by his father and went to Nebraska to make his permanent home. The question was whether, having been emancipated and freed from the power and authority of his parents, he could acquire a domicile apart from theirs. The question arose in an indictment for murder. Having resided 8 months in Nebraska, Estler was called as a juror in the case. He became of age August 21, 1900, a month preceding the trial. By section 657 of the Civil Code of procedure of that state male persons over the age of 21 years, having the qualifications of electors, were made competent...