Janzen v. Goos

• Citation: 302 F.2d 421
• Decision Date: 27 April 1962
• Docket Number: No. 16902.,16902.
• Parties: Irene A. JANZEN, Administratrix of the Estate of Waldo R. Janzen, Deceased, Appellant, v. Wilber W. GOOS and Ivan Gottula, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

302 F.2d 421 (1962)

Irene A. JANZEN, Administratrix of the Estate of Waldo R. Janzen, Deceased, Appellant, v. Wilber W. GOOS and Ivan Gottula, Appellees.

No. 16902.

United States Court of Appeals Eighth Circuit.

April 27, 1962.

COPYRIGHT MATERIAL OMITTED

Donald P. Lay, Omaha, Neb., made argument for the appellant and John J. Higgins, Jr., Omaha, Neb., was with him on the brief.

Morris J. Bruckner, Omaha, Neb., made argument for the appellee and Robert S. Finn, Tecumseh, Neb., was with him on the brief.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HENLEY, District Judge.

BLACKMUN, Circuit Judge.

This action was dismissed for lack of diversity jurisdiction. The plaintiff has appealed.

The suit, presumably brought pursuant to §§ 30-809 and 30-810, R.R.S.Nebraska 1943, on behalf of a decedent's widow and six minor children, as next of kin, is for the alleged wrongful death of the decedent on November 20, 1960, resulting from injuries sustained in a Nebraska automobile accident. The complaint, by the widow as special administratrix¹ of her husband's estate, alleges that she is a citizen of Kansas, that the two defendants are citizens of Nebraska, and that the amount in controversy exceeds the minimum specified by 28 U.S. C.A. § 1332, as amended to date. Each of the defendants, prior to filing an answer, moved that the action be dismissed for lack of the requisite diversity of citizenship. Their motions were sustained.

At the hearing on the motions no witness testified. The parties stipulated,² however, (a) that the decedent was a resident of Richardson County, Nebraska; (b) that he died in that state on November 20, 1960, as a result of injuries received in an accident; (c) that on February 9, 1961, the plaintiff was the widow of the decedent and was a citizen and resident of Stella, Nebraska; (d) that on that date she filed in the County Court of Richardson County, Nebraska, a petition for her appointment as administratrix of her husband's estate; (e) that on March 6, 1961, the plaintiff was appointed as such administratrix; (f) that letters of administration were issued to her by that court on March 15, 1961; (g) that on May 17, 1961, the plaintiff

"moved with her entire family to 809 East 6th Street, Newton, Kansas. She was living there with her family on July 14, 1961, and if permitted to testify would testify that she was living there with the intention of residing there permanently";

(h) that the complaint in the present action was filed in the United States District Court for the District of Nebraska on July 14, 1961; (i) that at that time the plaintiff was still serving in the capacity of Nebraska administratrix; and (j) that on July 18, 1961, as administratrix, she filed an inventory in the estate listing as its only asset the claim of the heirs and next of kin of the decedent for his alleged wrongful death.

The absence of findings. The trial court made no findings of fact. The determination of citizenship, however, is "a mixed question of law and of fact, but mainly one of fact". Maple Island Farm v. Bitterling, 8 Cir., 1952, 196 F.2d 55, 59, cert. den. 344 U.S. 832, 73 S.Ct. 40, 97 L.Ed. 648; Welsh v. American Surety Co. of New York, 5 Cir., 1951, 186 F.2d 16, 18. Although findings, therefore, would have been helpful, we note that the motions to dismiss were obviously presented under Rule 12(b), F.R.Civ. P., 28 U.S.C.A., and that, by the very provisions of Rule 52(a),³ findings are not now required with respect to a Rule 12 motion. While there have been intimations that this language of Rule 52(a) is to be limited to situations where only questions of law are involved, Moore's Federal Practice (2d Ed.), Vol. 5, Par. 52.08, p. 2673, we nevertheless conclude that, inasmuch as a full understanding of the question presented is to be had in this case without the aid of separate findings, remand for appropriate findings is not required here. Sbicca-Del Mac v. Milius Shoe Co., 8 Cir., 1944, 145 F.2d 389, 400; Aetna Life Ins. Co. v. Meyn, 8 Cir., 1943, 134 F.2d 246, 249; Yanish v. Barber, 9 Cir., 1956, 232 F.2d 939, 947; Urbain v. Knapp Brothers Manufacturing Company, 6 Cir., 1954, 217 F.2d 810, 816, cert. den. 349 U.S. 930, 75 S.Ct. 772, 99 L.Ed. 1260; Moore's Federal Practice (2d Ed.), Vol. 5, Par. 52.062, pp. 2662-4, Par. 52.10, p. 2676.

Construction of 28 U.S.C.A. § 1332. Statutes conferring diversity jurisdiction upon the federal courts are to be strictly construed. Thomson v. Gaskill, 1942, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951; Indianapolis v. Chase National Bank, 1941, 314 U.S. 63, 76, 62 S.Ct. 15, 86 L.Ed. 48; Healy v. Ratta, 1934, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248. Consequently, "if a plaintiff's allegations of jurisdictional facts are challenged by the defendant, the plaintiff bears the burden of supporting the allegations by competent proof". Thomson v. Gaskill, supra, p. 446 of 315 U.S., p. 675 of 62 S.Ct.; McNutt v. General Motors Acceptance Corp., 1936, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135; KVOS, Inc. v. Associated Press, 1936, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183. Therefore, although the complaint before us properly alleges facts sufficient for diversity jurisdiction, the situation is not one, as the plaintiff suggests, for the application of the rule that, for purposes of a motion to dismiss, the allegations of the complaint are to be taken as true. Land v. Dollar, 1947, 330 U.S. 731, 735, footnote 4, 67 S.Ct. 1009, 91 L.Ed. 1209. Instead, the challenge to the diversity jurisdiction, raised by the motions here, places the allegation of the plaintiff's complaint that she is a citizen of Kansas flatly in issue and she is required to establish this feature of her case. Schuckman v. Rubenstein, 6 Cir., 1947, 164 F.2d 952, 955, cert. den. 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151. This she must do by a preponderance of the evidence, Welsh v. American Surety Co. of New York, supra, p. 17 of 186 F.2d, or, as this court may even have suggested in the Bitterling case, supra, p. 59 of 196 F.2d, with a reference to 28 C.J.S. Domicile § 18(a), by proof which is "clear and convincing".

Citizenship and its acquisition. Citizenship and domicile are synonymous for purposes of § 1332. Ellis v. Southeast Construction Co., 8 Cir., 1958, 260 F.2d 280, 281; Stine v. Moore, 5 Cir., 1954, 213 F.2d 446, 448; Clemmer v. Kummer, D. Minn., 1960, 187 F.Supp. 736, 738. The existence of diversity of citizenship is to be determined not as of the time the cause of action arises but as of the time suit is instituted. Thompson v. Moore, 8 Cir., 1940, 109 F.2d 372, 373-374; McNello v. John B. Kelly, Inc., 3 Cir., 1960, 283 F.2d 96, 99, footnote 1; Clemmer v. Kummer, supra, p. 737 of 187 F.Supp. See Wichita Railroad & Light Company v. Public Utilities Commission, 1922, 260 U.S. 48, 53-54, 43 S. Ct. 51, 67 S.Ct. 124; Smith v. Sperling, 1957, 354 U.S. 91, 93, footnote 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205; Boesenberg v. Chicago Title & Trust Co., 7 Cir., 1942, 128 F.2d 245, 247, 141 A.L.R. 565.

Any person, sui juris, may make a bona fide change of domicile or citizenship at any time. Stine v. Moore, supra, p. 448 of 213 F.2d. However, one may have only one domicile at a time and a domicile once established persists until a new one is acquired. Ellis v. Southeast Construction Co., supra, p. 281 of 260 F.2d; Desmare v. United States, 1877, 93 U.S. 605, 610, 23 L.Ed. 959; Restatement of the Law of Conflict of Laws, § 23. Once acquired, it is presumed to continue until it is shown to have been changed. Mitchell v. United States, 1875, 21 Wall. 350, 353, 22 L.Ed. 584; Stine v. Moore, supra, p. 447 of 213 F. 2d.

This court has expressed itself as to the requirements of the acquisition of a domicile for diversity purposes:

"To acquire a domicil of choice, the law requires the physical presence of a person at the place of the domicil claimed, coupled with the intention of making it his present home. When these two facts concur, the change in domicil is instantaneous. Intention to live permanently at the claimed domicil is not required. 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, 1945, 151 F.2d 702, 705-706, cert. den. 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009. This language was repeated by us with approval in Maple Island Farm v. Bitterling, supra, p. 58 of 196 F.2d, and in Ellis v. Southeast Construction Co., supra, p. 281 of 260 F.2d. To the same effect are Welsh v. American Surety Co. of New York, supra, p. 17 of 186 F.2d; Sun Printing and Publishing Association v. Edwards, 1904, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027; Hardin v. McAvoy, 5 Cir., 1954, 216 F.2d 399, 402; and Restatement of the Law of Conflict of Laws, § 15(3).

The effect of representative capacity. When an action is brought by an administrator or other fiduciary and the governing state law authorizes that fiduciary to bring suit in his own name as the real party in interest, it is the fiduciary's personal citizenship, not the identity of the state from which he receives his appointment or the citizenship of the persons for whose benefit the action is brought, which is pertinent in the ascertainment of the existence of diversity. Mecom v. Fitzsimmons Drilling Co., 1931, 284 U.S. 183, 186, 52 S.Ct. 84, 76 L.Ed. 233; Memphis Street Ry. Co. v. Moore, 1917, 243 U.S. 299, 37 S.Ct. 273, 61 L.Ed. 733; Smith v. Sperling, supra, p. 93 and footnote 1 of 354 U.S., 77 S.Ct. 1112, 1 L.Ed.2d 1205; Moore's Federal Practice (2d Ed.), Vol. 3, Par. 17.04, pp. 1313-4. This court has so held on a number of occasions. County of Todd v. Loegering, 8 Cir., 1961, 297 F. 2d 470, 472-475; McCoy v. Blakely, 8 Cir., 1954, 217 F.2d 227, 230-231; Minnehaha County v. Kelley, 8 Cir., 1945, 150 F.2d 356, 358; Curb & Gutter Dist. No. 37 v. Parrish, 8 Cir., 1940, 110 F.2d 902, 906. Compare Martineau v. City of St. Paul...