Humphrey v. Fort Knox Transit Co.

• Decision Date: 06 January 1945
• Docket Number: No. 679.,679.
• Citation: 58 F. Supp. 362
• Parties: HUMPHREY v. FORT KNOX TRANSIT CO.
• Court: U.S. District Court — Western District of Kentucky

58 F. Supp. 362

HUMPHREY v. FORT KNOX TRANSIT CO.

No. 679.

District Court, W. D. Kentucky, at Louisville.

January 6, 1945.

R. C. Dougherty and John Dougherty, both of Louisville, Ky., for plaintiff.

Hugo Taustine, of Louisville, Ky., and R. W. Keenon, of Lexington, Ky., for defendant

MILLER, District Judge.

The plaintiff, Elmo M. Humphrey, sought by this action damages from the defendant, Fort Knox Transit Company, by reason of injuries alleged to have been received while being discharged as a passenger from one of the busses operated by the defendant over the United States Military Reservation in Fort Knox, Kentucky. The plaintiff was a soldier in the United States Army, stationed at Fort Knox, Kentucky. A jury trial resulted in a verdict for the plaintiff in the amount of $1,000. The matter is now before the Court upon the defendant's renewal of its motion for a directed verdict and its motion and grounds for a new trial, in accordance with the provisions of Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

The defendant's first contention is that jurisdiction claimed by the plaintiff on the grounds of diversity of citizenship, did not exist. The petition as amended states that the plaintiff "is a citizen of the United States and a resident of Cincinnati, Hamilton County, Ohio; that he is in the armed forces of the United States of America and is stationed at Fort Knox, Kentucky." The answer denied these allegations, the defendant contending that the plaintiff was a resident and citizen of Kentucky instead of Ohio.

It will be noticed that the petition does not allege that the plaintiff was a citizen of Ohio, but merely states that he was a resident of Cincinnati, Ohio. Residence and citizenship are not the same. Diversity of citizenship, rather than diversity of residence, is necessary to confer jurisdiction upon the District Court. The allegations of the petition are by themselves accordingly insufficient. Realty Holding Co. v. Donaldson, 268 U.S. 398, 45 S.Ct. 521, 69 L.Ed. 1014. But the failure to properly allege diversity of citizenship between the plaintiff and the defendant will not defeat the jurisdiction of the Court, if, as a matter of fact such diversity exists. The whole record may be looked to for the purpose of curing a defective averment of citizenship, "and if the requisite citizenship is anywhere expressly averred in the record, or facts are therein stated which, in legal intendment, constitute such allegation, that is sufficient." Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 697, 48 L.Ed. 1027; Kelleam v. Maryland Casualty Co., 10 Cir., 112 F.2d 940, 943. Proof that a party to the suit is a resident of a state is prima facie evidence that he is a citizen thereof. Kelleam v. Maryland Casualty Co., supra; Anderson v. Watts, 138 U.S. 694, 702, 11 S.Ct. 449, 34 L.Ed. 1078; Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027. The evidence showed that at the time of the trial plaintiff had been in the Army for four years; that prior to entering the Army he lived in Cincinnati where he ran a business which he sold upon induction; that he claims Cincinnati, Ohio, as his residence; that on October 14, 1943 he married and shortly thereafter brought his wife to Owensboro, Kentucky, which is approximately 95 miles from Fort Knox, Kentucky, where she had lived for 18 months last past; and that he returned to Cincinnati to vote in the November 1944 election. The action was filed on February 11, 1944. Although the defendant at the trial contested the actual residence and citizenship of the plaintiff, contending that it was Kentucky rather than Ohio, no point was made by it of the defect in the pleadings, and it was assumed by the parties and the Court at the time that no such defect existed in the pleadings. In its brief filed in support of the present motion no point is made on the question of pleading, but the argument is restricted to the question of residence as shown by the evidence. The Court considers the defective averment of the pleadings cured by the facts as shown by a consideration of the entire record. See Realty Holding Co. v. Donaldson, 268 U.S. 398, 400, 45 S.Ct. 521, 69 L.Ed. 1014.

The evidence offered was sufficient to establish the fact that the plaintiff was a citizen of the State of Ohio, even though he and his wife had been living for several years in Kentucky. Citizenship depends upon domicile rather than upon residence. "A domicile once acquired is presumed to continue until it is shown to have been changed. Where a change of domicile is alleged the burden of proving it rests upon the person making the allegation. To constitute the new domicile two things are indispensable: First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired, the old one remains. These principles are axiomatic in the law upon the subject." Mitchell v. United States, 21 Wall. 350, 353, 22 L.Ed. 584. Residence in a state other than the state of domicile, even for a long period of time, for the purpose of performing official duties which have been assumed by the resident, does not by itself operate as a change of domicile. Certainly, compulsory service by a soldier at an army post in another state, even though he brings his wife to a nearby town to be near him, does not operate as a change of domicile. Wise v. Bolster, W.D.Wash., 31 F.Supp. 856; Ex parte White, D.C.N.H., 228 F. 88; Sweeney v. District of Columbia, 72 App. D.C. 30, 113 F.2d 25, 129 A.L.R. 1370; Pioneer Southwestern Stages v. Wicker, 9 Cir., 50 F.2d 581. The Court finds that the plaintiff was in fact a citizen of the State of Ohio; that diversity of citizenship between the plaintiff and defendant existed; and that the Court had jurisdiction to hear and determine the issue.

The defendant's motion for a directed verdict and its complaint of the Court's instructions present the same question of law and can be considered together. The evidence was uncontradicted that the...