Ellis v. Southeast Construction Company

• Decision Date: 20 January 1958
• Docket Number: Civ. A. No. 648.
• Citation: 158 F. Supp. 798
• Parties: Glenn C. ELLIS, Jr., Plaintiff, v. SOUTHEAST CONSTRUCTION COMPANY, Hempstead County, Arkansas and Miller M. Bland, Defendants.
• Court: U.S. District Court — Western District of Arkansas

158 F. Supp. 798

Glenn C. ELLIS, Jr., Plaintiff, v. SOUTHEAST CONSTRUCTION COMPANY, Hempstead County, Arkansas and Miller M. Bland, Defendants.

Civ. A. No. 648.

United States District Court W. D. Arkansas, Texarkana Division.

January 20, 1958.

Shaver, Tackett & Jones, Boyd Tackett, Texarkana, Ark., for plaintiff.

Weisenberger & Wilson, Royce Weisenberger, Hope, Ark., for defendants Hempstead County, Ark., and Miller M. Bland.

Wright, Harrison, Lindsey & Upton, Alston Jennings, and Robert Shults, Little Rock, Ark., for Southeast Const. Co.

LEMLEY, Chief Judge.

This cause, which is an action for damages to real estate located in Hempstead County, Arkansas, is now before the Court upon the jurisdictional question of whether or not there is diversity of citizenship between the parties, which question has been submitted upon oral testimony and memorandum pre-hearing briefs. The plaintiff, Glenn C. Ellis, Jr., a native of Arkansas, who is now a technical sergeant in the United States Air Force, stationed at Barksdale Field, Shreveport, Louisiana, claims that in the course of his military service he has abandoned his original domicile in Arkansas, and has acquired a domicile of choice in Louisiana, and is a citizen of that state. The defendants, Southeast Construction Co., an Arkansas corporation, Hempstead County, Arkansas, a political subdivision of the State of Arkansas, and Miller M. Bland, an individual Arkansas citizen, contend, on the other hand, that the plaintiff is still a citizen of Arkansas, and that there is an absence of diversity.¹ In the course of the hearing the following background facts were developed:

The plaintiff, who is thirty-eight years of age, was born and raised in Saratoga, Arkansas, and enlisted in the armed forces on April 26, 1939. He has been continuously in the service since that time, and has been stationed at various places in this country, and has also served abroad; his duties in the Air Force are those of a flight engineer, and he earns a gross salary of slightly more than $500 per month.

In 1941 he married a Nashville, Arkansas girl, and they now have three children, one a boy about twelve years old, a girl nearly seven years of age, and an infant daughter who at the time of the hearing was only about two weeks old. In the course of the marriage Mrs. Ellis and the older children have lived with the plaintiff whenever he has had what he calls a "permanent station", by which term he explained that he means a station to which his family may be brought at government expense and where he may reasonably expect to remain for a material period of time. Prior to his transfer to Barksdale Field he has had "permanent stations" at Tampa, Florida, where he remained for nearly seven years, Rapid City, South Dakota, where he remained for two and one-half years, and Salina, Kansas, where he was stationed for less than one year. While stationed at Tampa, plaintiff bought a house for his family because he was dissatisfied with available government housing and because his prospects of remaining there attached to the Strategic Air Command appeared to be good, he kept the house about two years, and, upon his transfer to South Dakota, sold it, or his equity therein.

The plaintiff was transferred to Barksdale Field in March, 1956 and until August 26, 1957 he and his family lived in a rented apartment, paying $75 per month rent plus $15 per month for utilities. On the date last mentioned he purchased a house on the installment plan; the total purchase price of the house was $15,500, of which sum he paid $800 down, plus certain "closing costs," and executed an installment note and mortgage for the balance of $14,700, which note called for monthly payments of $81.29 each over a thirty year period. The house was purchased after the acts of which the plaintiff complains allegedly took place and after this suit was filed.

According to the complaint and the proposed complaint in intervention, which pleadings were prepared by the attorney who represents both the plaintiff and his grandmother, the land here involved was acquired by the plaintiff in 1949 by means of a warranty deed executed by a number of his relatives. In the same month in which that deed was executed he and his grandmother entered into a contract which recited that he had paid a cash consideration of $1,350 for the property; said contract gave a life estate in the land to the grandparents of the plaintiff, permitted them to enjoy the income from the land during the life estate, and obligated them to keep the taxes paid and to discharge a prior existing indebtedness against the property. The contract also provided that the plaintiff could make such improvements as he might desire on the property during the life estate.

The only evidence introduced at the hearing was the testimony of the plaintiff and his wife, and certified copies of the deed, note and mortgage covering the Shreveport property. Before discussing the controversial portions of this testimony and the jurisdictional question before us, we deem it well to set forth certain general legal principles which are applicable to cases of this kind:

For purposes of federal jurisdiction, "domicile" and "citizenship" are synonymous terms, 54 Am.Jur. "United States Courts," Section 58, p. 711; 1 Barron & Holtzoff, "Federal Practice & Procedure," Section 26, p. 55; Delaware L. & W. R. Co. v. Petrowsky, 2 Cir., 250 F. 554; Bjornquist v. Boston & A. R. Co., 1 Cir., 250 F. 929, 5 A.L.R. 951; Valentine v. Powers, D.C.Neb., 85 F.Supp. 732; Taylor v. Milam, D.C.Ark., 89 F.Supp. 880. A person can have only one domicile at a time, and a domicile once obtained persists until a new one is acquired. Desmare v. United States, 93 U.S. 605, 23 L.Ed. 959; Mitchell v. United States, 21 Wall. 350, 88 U.S. 350, 22 L. Ed. 584; Berger v. Berger, 3 Cir., 210 F.2d 403; Sivalls v. United States, 5 Cir., 205 F.2d 444; Barber v. Varleta, 9 Cir., 199 F.2d 419; Mid-Continent Pipe Line Co. v. Whitely, 10 Cir., 116 F.2d 871; Taylor v. Milam, supra, D.C.Ark., 89 F. Supp. 880.

Any person who is sui juris has a right to change his domicile, and such change is accomplished when there is a concurrence of the physical presence of a person at the place of the domicile claimed and of an honest intention on his part to make such place his present home. 28 C.J.S. Domicile § 12, p. 20; Spurgeon v. Mission State Bank, 8 Cir., 151 F.2d 702; Maple Island Farm v. Bitterling, 8 Cir., 196 F.2d 55. "If a person capable of making his choice honestly regards a place as his present home, the motive prompting him is immaterial." Spurgeon v. Mission State Bank, supra, 151 F.2d at page 706. But a mere intent to make a new home at a given place in the future or upon the happening of some contingency is insufficient. 28 C.J.S. Domicile, § 11, p. 20. One of the marked evidences of domicile is that "the person claiming it identifies himself and all his interests with his new place of abode, and exercises the right and performs the duties of a citizen." Byers v. United States, 141 F.Supp. 927, 929, 136 Ct.Cl. 250, quoting with approval from Thompson v. Warner, 83 Md. 14, 34 A. 830, 831. Among the circumstances usually relied upon to establish the requisite intent are: "`Declarations of the party; the exercise of political rights; the payment of personal taxes; a house of residence, and a place of business.'" Ibid, quoting from Mitchell v. United States, supra, 88 U.S. at page 353.

The question of domicile is a mixed one of law and fact, with the factual elements predominating. Maple Island Farm v. Bitterling, supra, 8 Cir., 196 F.2d at page 59. There is a presumption in favor of an original or former domicile as against an acquired one; proof of a change of domicile must be clear and convincing, and more evidence is required to show a loss of a domicile of origin than of any other kind. Ibid.; see also 28 C.J.S. Domicile § 18a.

Since the acquisition of a domicile of choice involves the exercise of free will, and since members of the armed services are persons under authority, going where they are sent and abiding in a locality only for so long as their superiors permit them to remain, enlistment in one of such services does not ordinarily destroy a domicile of origin, nor in general does a serviceman acquire a new domicile in a state in which he may be stationed. A new domicile may be acquired by such a person, however, "if the circumstances show an intent on his part to abandon the old domicile and adopt the new one." 17A Am.Jur. "Domicil", Section 40, p. 227; see also 28 C.J.S. Domicile § 12(g), p. 28. As in other cases in which change of domicile is relied upon, the evidence establishing such change must be clear and convincing. Kinsel v. Pickens, D.C.Tex., 25 F.Supp. 455.

From our consideration of the cases in which the courts have been concerned with whether or not service personnel have acquired domiciles of choice at places where stationed, it appears to us that the courts in passing upon such question have considered not only the declarations and testimony of the persons involved, but also their actual military or naval status, the presence or absence of ties with the original or former domicile which would indicate its retention, and whether or not the person involved has formed such ties or connections with the new location as would indicate that he considers it to be his true home. Ex parte White, D.C.N.H., 228 F. 88; Sealey v. United States, D.C.Va., 7 F.Supp. 434; Kinsel v. Pickens, supra, D.C.Tex., 25 F. Supp. 455; Wise v. Bolster, D.C.Wash., 31 F.Supp. 856; Humphrey v. Ft. Knox Transit Co., D.C.Ky., 58 F.Supp. 362, affirmed per curiam, 6 Cir., 151 F.2d 602; Von Knorr v. Miles, D.C.Mass., 60 F. Supp. 962, reversed on other grounds, 1 Cir., 156 F.2d 287; Seegers v. Strzempek, D.C.Mich., 149 F.Supp. 35; Mangene v. Diamond, 9 Cir., 229 F.2d 554; Kennedy v. Kennedy, 205 Ark. 650, 169 S.W.2d 876; Mohr v. Mohr, 206 Ark....