Harris v. American Legion
| Decision Date | 25 April 1958 |
| Docket Number | No. IP 56-C-21.,IP 56-C-21. |
| Parties | William H. HARRIS v. The AMERICAN LEGION and Arthur Wayne Murphy. |
| Court | U.S. District Court — Southern District of Indiana |
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Kivett & Kivett, Indianapolis, Ind., by Joe L. Kivett, Indianapolis, Ind., for plaintiff.
Gregg, Fillion, Fillenwarth & Hughes, Indianapolis, Ind., by Ralph B. Gregg, Indianapolis, Ind., for defendant The American Legion.
Craig & Pope, Indianapolis, Ind., by Roy A. Pope and Milton E. Craig, Indianapolis, Ind., for defendant Arthur Wayne Murphy.
This is an action for the recovery of damages by reason of alleged libel and slander of the plaintiff by the defendants.
The amended complaint is in two paragraphs, the first of which is in two counts, both based on alleged libel. The second paragraph is in one count, predicated on alleged slander. Each count also states in substance or alleges by reference that the plaintiff is a citizen of the State of New York; that the defendant, The American Legion, is a body corporate created by an Act of Congress with its home office and residence in Indianapolis, Marion County, Indiana, and is a citizen of the State of Indiana; that the defendant, Arthur Wayne Murphy, is a resident of Indianapolis, Marion County, State of Indiana.
Separate answers were filed by the defendants closing the issues.
In its answer The American Legion, which will be referred to herein as the "Legion", denied that the plaintiff either on the date of filing of this action, or on the date of filing his amended complaint herein was a citizen of the State of New York, but that on said dates he was a citizen of the State of Indiana. It admitted that it was a body corporate, organized pursuant to an Act of Congress of the United States adopted September 16, 1919, and had been operating since said date in accordance with said original Act and the later amendments thereto. It further admitted that the defendant, Arthur Wayne Murphy, hereinafter referred to as "Murphy," was a resident of Indianapolis, Marion County, State of Indiana, on the date of filing this action, but denied that diversity of citizenship existed.
The defendant Murphy admitted that he was a resident of Marion County, Indiana, but alleged that he was without sufficient information to make an affirmative answer to the other allegations in plaintiff's amended complaint relative to the citizenship of the parties, which was in effect a denial of the allegations of citizenship.
The cause came on for trial before the Court, without the intervention of a jury, on the separate issue of jurisdiction under Section 1332(a) (1), Title 28 U.S.C.
The evidence relative to the citizenship of the plaintiff disclosed that he entered into the employ of the defendant Legion on January 20, 1950, as a Research Specialist, at which time he and his family lived at 840 Grand Concourse, The Bronx, New York, New York.
On or about May 1, 1950, following his indoctrination in connection with his duties as an employee he moved to the City of Indianapolis, Indiana, where he resided at various locations until his employment was terminated, February 17, 1954. In 1950, he voted in Marion County, Indiana, but has not since voted either in Indianapolis or elsewhere.
After the termination of his employment with the defendant Legion, the plaintiff has been unemployed and during the remainder of the year 1954 he remained in Indianapolis excepting for a period of time spent in Washington, D. C., where he cooperated with the Justice Department in the preparation of a case before the Subversive Activities Control Board in which he testified under oath at the hearing in May, that he lived in Indianapolis, Indiana. He also went to Texas in connection with prospective employment, and was in New York and Indiana part of the time.
While he was employed by the Legion, he paid Gross Income Taxes to the State of Indiana and also received unemployment compensation from that State following the termination of his employment. Since May, 1955 he has been rooming at the home of Mr. Marcell Pittet, 1944 Sharon Avenue, Indianapolis, Indiana, a major portion of the time, where he has kept some clothing, during which he has been looking for a job and conferring with his counsel in connection with the preparation of this case.
Prior to the filing of this action his counsel wrote a letter to the defendant Legion making a claim for damages by reason of alleged libel and slander wherein it was stated that the plaintiff resided at 1944 Sharon Avenue, Indianapolis, Indiana.
In the late Summer or early Fall of 1950, the plaintiff's family, consisting of his wife, and son, moved from 840 Grand Concourse, The Bronx, New York, New York, to Newark, Ohio, and lived with the plaintiff's parents for more than a year during which the wife was recuperating from a surgical operation, after which she moved to Levittown, New York, where she lived with some friends.
In November, 1952, the plaintiff and his wife purchased a residence at 44 Surrey Lane, Levittown, Nassau County, New York, where they moved their furniture and this residence is still owned by them. The plaintiff's wife and son have resided therein continuously since that time and he has paid property taxes in the State of New York since 1953 and during the years 1954, 1955 and 1956, he and his wife filed joint income tax returns in the State of New York. Prior to the filing of this action a telephone was installed in said premises in the plaintiff's name, which has remained in his name continuously since that time and a part of his clothing and personal effects have been kept there since the premises were purchased in 1952. His wife has been a teacher in the Nassau County School System since the Fall of 1951 and the plaintiff, his wife and their son are members of the Trinity Lutheran Church in Levittown, New York. The plaintiff has received his mail at the New York residence since its purchase and has considered that his domicile since 1952 has been at 44 Surrey Lane, Levittown, Nassau County, New York.
Domicile is the controlling factor in determining citizenship for diversity purposes under Section 1332(a) (1) Title 28 U.S.C.
In the case of Shaffer v. Tepper, D.C.1955, 127 F.Supp. 892, 893, 894, the Court in defining "Citizenship" as that term is used in connection with jurisdiction stated:
While the evidence showed that the plaintiff resided in Indiana most of the time since 1950, there is a distinction between "residence" and "domicile" and in the opinion of the Court the plaintiff's domicile, at the time of the filing of this action, was at 44 Surrey Lane, Levittown, New York, and he was a citizen of New York at that time.
The defendant Legion was incorporated by an Act of Congress adopted September 16, 1919 (Chap. 59, 41 Stat. 284-285), which has been amended from time to time by further congressional action (36 U.S.C.A.) §§ 41 to 51, incl., and Secs. 43 and 45, 1957 Cum.Ann. Pocket Part of that Title. It provides that certain persons named therein:
Chap. 59, Sec. 1, 41 Stat. 284, 36 U.S.C.A. § 41.
The Act authorized persons named in Section 1:
"* * * and such other persons as may be selected from among the membership of The American Legion, an unincorporated society of the soldiers, sailors, and marines of the Great War of 1917-1918, are authorized to meet to complete the organization of said corporation by the selection of officers, the adoption of a constitution and by-laws, and to do all other things necessary to carry into effect the provisions of this chapter * * *." Chap. 59, 41 Stat. 284, 36 U.S.C.A. § 42.
Section 3 of the original Act as amended defines the purposes of the corporation as follows:
"* * * To uphold and defend the Constitution of the United States of America; to promote peace and good will among the peoples of the United States and all the nations of the earth; to preserve the memories and incidents of the two World Wars and the Korean Hostilities fought to uphold democracy; to cement the ties and comradeship born of service; and to consecrate the efforts of its members to mutual helpfulness and service to their country."1 Sept. 16, 1919, Chap. 59, Sec. 3, 41 Stat. 285, Oct. 29, 1942, Chap. 633, Sec. 1, 56 Stat. 1012, July 26, 1955, Chap. 386, Sec. 1, 69 Stat. 379, 36 U.S.C.A. § 43.
The Legion was clothed with the following powers under the Congressional Act as amended:
"To have perpetual succession with power to sue and be sued in courts of law and equity; to receive, hold, own, use, and dispose of such real estate and personal property as shall be necessary for its corporate purposes; to adopt a corporate seal and alter the same at pleasure; to adopt a constitution, bylaws, and regulations to carry out its purposes, not inconsistent with the laws of the United States or of any State; to use, in carrying out the purposes of the corporation, such emblems and badges as it may adopt and to have the exclusive right to manufacture, and to control the right to manufacture, and to use, such emblems and badges as may be deemed necessary in the fulfillment of the purposes of the corporation; to establish and maintain offices for the conduct of its business; to establish State and Territorial organizations and local chapter or post...
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