Mid-Continent Pipe Line Co. v. Whiteley

• Decision Date: 05 February 1941
• Docket Number: No. 2120.,2120.
• Citation: 116 F.2d 871
• Parties: MID-CONTINENT PIPE LINE CO. v. WHITELEY.
• Court: U.S. Court of Appeals — Tenth Circuit

116 F.2d 871 (1940)

MID-CONTINENT PIPE LINE CO. v. WHITELEY.

No. 2120.

Circuit Court of Appeals, Tenth Circuit.

December 30, 1940.

Rehearing Denied February 5, 1941.

R. H. Wills and I. L. Lockewitz, both of Tulsa, Okl. (J. C. Denton, J. H. Crocker, and J. P. Greve, all of Tulsa, Okl., on the brief), for appellant.

B. A. Hamilton, of Tulsa, Okl. (S. J. Clendinning, William M. Taylor, and Leslie W. Lisle, all of Tulsa, Okl., on the brief), for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

Alonzo Burr Whiteley sued Cosden Pipe Line Company — its corporate name was subsequently changed to Mid-Continent Pipe Line Company — and Mid-Continent Petroleum Corporation, to recover damages for personal injuries caused by the negligent operation of an automobile. The case was dismissed as to the defendant Mid-Continent Petroleum Corporation; plaintiff prevailed against the defendant Mid-Continent Pipe Line Company; and it appealed.

The first question presented relates to the jurisdiction of the court. Plaintiff relied upon diversity of citizenship and the requisite amount in controversy as the basis of jurisdiction. The specific and narrow point in issue is whether at the time of the institution of the suit plaintiff had abandoned his residence in Oklahoma, had established residence in California, and was a bona fide citizen of that state, within the meaning of the first paragraph of Section 24 of the Judicial Code, as amended, 28 U.S.C.A. § 41. The suit was instituted on February 6, 1939, and it was alleged in the complaint that plaintiff was at all times therein referred to, a resident and citizen of Tulsa County, Oklahoma; that defendant Cosden Pipe Line Company was a corporation organized under the laws of Oklahoma; and that defendant Mid-Continent Petroleum Corporation was a corporation organized under the laws of Delaware Defendant Cosden Pipe Line Company, appearing specially for the purpose of attacking the jurisdiction of the court, and for no other purpose, filed a motion to dismiss the action for want of complete diversity of citizenship. Plaintiff made application to amend the complaint by interlineation to allege that at the time of the filing of the suit he was a bona fide citizen and resident in good faith of California. The court permitted the amendment; and by answer the defendants specifically denied that plaintiff was a resident and citizen of California and affirmatively alleged that he was a resident and citizen of Oklahoma. The jurisdictional issue thus presented was submitted to the court in advance of the trial on the merits to a jury. The court heard evidence and found that at the time of the commencement of the action plaintiff was a resident and citizen of California. The finding is challenged on the ground that it is not supported by the evidence, is against the evidence, and is clearly wrong.

Plaintiff had been a resident of Oklahoma. He contends that he ended his residence and citizenship there and established residence and citizenship in California late in December, 1938, less than two months prior to the institution of the action. Without any attempt to draw a refined distinction between the two, but using the terms synonymously, residence or domicile, once fixed, remains until a new one is established. And two elements are essential to the establishment of a new residence or domicile. One is intention, and the other is some act or acts to carry the intention into effect. Frequently the question depends upon no one fact or circumstance, but is to be determined upon all the facts and circumstances considered as a whole.

The allegation of citizenship in California was not enough. When drawn in question, the burden rested upon plaintiff to prove by a preponderance of the evidence that he was a citizen of that state. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; KVOS, Inc., v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183; Town of Lantana, Fla. v. Hopper, 5 Cir., 102 F.2d 118.

There was testimony which fairly tended to prove these facts. Plaintiff was born in Arkansas. In 1924, when he was ten years of age, he moved with his family to a farm in Oklahoma, and his father became a tenant farmer there. The accident occurred two years later, when plaintiff was twelve years old. Although he made short trips to Arkansas and Missouri, and one to California in 1937, he continued to reside in the home of his parents in Oklahoma until 1938, but spent a substantial part of his time in hospitals and elsewhere. He liked California while there in 1937, and formed the intention to return there at some future time to make it his home. He was single; one of his younger brothers, likewise single, moved out there in 1938, and wrote plaintiff urging him to come and join him. He went in December, 1938. Before departing he made up his mind to make it his home, and that had been his intention ever since. He took along in a suitcase all of his possessions, consisting of clothing and personal effects. Before leaving he told his father and mother, and four other persons separately, that he was going to California to live with his brother. He had a somewhat tentative and rather indefinite promise of a job out there; and his brother stated in one letter that he had work and could support both of them until plaintiff could find a job. When he arrived his brother was living in an apartment with three other employees. Plaintiff joined them, and the five ate and slept in the same apartment. Plaintiff did the cooking and took care of the apartment, but did little if any other work. A suit upon this same cause of action was and had been pending in the state court for about three years. Plaintiff did not advise his attorneys that he was going to California, or that he intended to establish residence there; but while there he wrote one of them, stating that he arrived a few days previously, asking when it was expected that the case would come up, stating that he had stayed in Oklahoma two years hoping that it would come to trial, expressing the hope that it would not be postponed, and asking whether anything could be done because of his having moved to California. He returned to Oklahoma about February 1, 1939, and went to the home of his parents. The threefold purpose in returning was to see what could be done about his long pending case, to see his family, and to testify as a witness in a criminal case in the state court. He did testify in the criminal case, but the record presents confusion as to the date. He stated in the course of his testimony that he lived in Oklahoma. He returned to California early in March, 1939, again joined his brother, and remained there until early in June. He cooked and kept house for his brother, two other workmen, and himself. The apartment was rented in the name of one of the laborers; the brother and the other laborers furnished all of the household expenses of the entire group, including plaintiff. Plaintiff went back to the home of his parents early in June and remained there for about two weeks, this case being the occasion for the trip. He then again returned to California. In the meantime, his brother had moved to another town. He joined his brother, remained there until sometime in September, then went once more to the home of his parents, and remained there until the time of the hearing in November. He did a little work at interspersed intervals after returning to Oklahoma, but had no fixed employment. When leaving California in February, he told the men with whom he had lived in the apartment that he was going to Oklahoma on a visit and would be back soon; and when departing in September, he left in California a suit, some shirts, and a few other personal effects. There was a direct conflict in the testimony as to whether plaintiff stated to a friend after his return to Oklahoma in February that he had decided to take a vacation; that he had the choice of several places, but thought he would go to California; and that his reason for leaving Oklahoma was in order to maintain his suit in the federal court. The explanation offered for the allegation in the complaint that plaintiff was a citizen of Oklahoma, was that one of the attorneys directed his stenographer to copy the petition in the case in the state court with the appropriate changes, and that she inadvertently overlooked making the change in respect to residence of plaintiff. Plaintiff never registered as a voter or voted in California. He did not register for employment during his stay there from December, 1938, to February, 1939, but he did register after his return in March, 1939; and he likewise registered on different occasions in Arkansas. He never voted in Oklahoma, but he registered there in June, 1938. His brother was registrar, and was compensated on the basis of the number of persons registered. He asked plaintiff to register, plaintiff replied that it was agreeable with him if it would help the brother, and the brother made up the record. If plaintiff went to California in December, 1938, with a present intention and purpose of remaining and establishing his residence there, he thereupon became and was at the institution of the suit a citizen of that state, within the meaning of the first paragraph of section 24 of the Judicial Code, supra. Chicago & Northwestern Ry. Co. v. Ohle, 117 U.S. 123, 6 S.Ct. 632, 29 L.Ed. 837; Morris v. Gilmer, 129 U.S. 315, 9 S.Ct. 289, 32 L.Ed. 690; Stockyards National Bank v. Bragg, 8 Cir., 293 F. 879. The evidence and the inferences and deductions fairly to be drawn from it presented a sharp conflict upon that question of fact.

But the court heard the evidence, and saw and observed the witnesses while testifying; and it cannot be said that the finding was clearly erroneous, due regard being given to the opportunity of the court to judge of the credibility of the witnesses....