Pacific Mut. Life Ins. Co. of California v. Tompkins

• Decision Date: 01 May 1900
• Docket Number: 339.
• Citation: 101 F. 539
• Parties: PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. TOMPKINS.
• Court: U.S. Court of Appeals — Fourth Circuit

101 F. 539

PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. TOMPKINS.

No. 339.

United States Court of Appeals, Fourth Circuit.

May 1, 1900

B. S Hutchinson and John F. Brown (Brown, Jackson & Knight and Harvey, Wyatt & Hutchinson, on brief), for plaintiff in error.

F. B Enslow (Simms, Enslow & Alderson, on brief), for defendant in error.

Before GOFF and SIMONTON, Circuit Judges, and WADDILL, District Judge.

SIMONTON Circuit Judge.

This case comes up by writ of error to the circuit court of the United States for the district of West Virginia. The action in the court below was brought by George H. Tompkins defendant in error here, against the Pacific Mutual Life Insurance Company of California, plaintiff in error; the cause of action, injury caused to the plaintiff by reason of malpractice upon the part of the physician of the defendant company. The first question raised in the case was as to the jurisdiction of the court.

George H. Tompkins, the plaintiff, was born in the state of West Virginia, and married in Huntington, in that state. He lived there five years. He obtained employment as a brakeman on the Chesapeake & Ohio Railroad, and for the sake of convenience he removed with his family to Clifton Forge, Va., in the latter part of 1893, or early in the year 1894. He lived with his family in Clifton Forge until October, 1898. He owned the house in which he lived in Clifton Forge, paid his taxes there, and exercised the right of suffrage in that town. About July, 1898, he was promoted, or expected promotion, as baggage master on the same road, and as by this promotion he had a long lay-over at Huntington, W. Va., he rented a house in that place. He did not remove at once, and did not complete his preparations for removal until 26th October, 1898. His delay was caused in part by the illness of his wife. On the 26th October, 1898, he removed finally to Huntington. On 2d September, 1897, Tompkins sustained an accident whereby his foot and ankle were seriously wrenched and strained. He was was compelled to call in a physician, who prescribed for him, and inclosed the injured parts in a plaster of Paris cast. At that time he held an accident policy in the defendant company. Under the terms of that policy, it was provided that the insured should permit any medical adviser of said company to examine the body of said insured in respect to any alleged injuries, in such a manner and at such times as the medical adviser might require. Under this clause in the policy, James F. Hughes, the medical adviser of the company, called upon Tompkins on October 8, 1897, for the purpose of making this examination. To this end, he took off the plaster cast and examined the injury, did not replace it, and advised Tompkins to take other means of cure. Tompkins followed his directions, became rapidly worse, and, finally, taking resort to other medical advisers, after much time and suffering, was reasonably cured. He charges malpractice upon the part of this medical agent of the company, and seeks to hold it responsible therefor. He brought this action on 30th of September, 1898, in the circuit court of the United States for the district of West Virginia. The writ states that the defendant is a citizen and resident of the state of California, and that the plaintiff is a citizen and resident of the state of West Virginia. The declaration setting forth the jurisdictional clause says that the plaintiff is a citizen and resident of the state of Virginia. On 12th January, 1899, the circuit court of the United States granted leave to the plaintiff to amend his declaration so as to accord to the writ, and to insert the word 'West' before the word 'Virginia,' thus alleging him to be a citizen and resident of the state of West Virginia. The allowance or refusal of this amendment was one of discretion in the circuit court, and is not reviewable here. Chirac v. Reinicker, 11 Wheat. 302, 6 L.Ed. 474; Walden v. Craig, 9 Wheat. 576, 6 L.Ed. 164; Wright v. Hollingsworth, 1 Pet. 165, 7 L.Ed. 96; Opelike City v. Daniel, 109 U.S. 108, 3 Sup.Ct. 70, 27 L.Ed. 873.

Thereupon the defendant filed its plea to the jurisdiction of the court; traversing the allegation as to the citizenship and residence of the plaintiff, and averring that at the date of bringing the suit he was a citizen and resident of the state of Virginia; so, the defendant being a citizen and resident of the state of California, the suit was not brought in a district in which either the plaintiff or defendant was resident. To this plea the plaintiff filed two replications,-- one joining issue on the allegation of citizenship and residence; the other averring that the defendant had waived all objection to the jurisdiction by reason of the fact that on separate occasions, before filing said plea, it had appeared at the taking of depositions on behalf of the plaintiff, and had then and there cross-examined witnesses, without exception or protest, and without saving the question of jurisdiction. The issues on these pleas were submitted to the court without the intervention of a jury. The court sustained these objections to the plea, and it was overruled. Defendant excepted, and this is one of the assignments of error.

At the time these depositions were taken, the declaration, on its face, stated that the action brought in the district of West Virginia was brought by a citizen and resident of the state of Virginia against a citizen and resident of the state of California. This of itself showed that the court had no jurisdiction. 'Where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. ' Act Cong. Aug. 13, 1888 (25 Stat. 433). No plea was necessary, as without amendment the court, suo motu, would have dismissed the suit. Nor could this have been waived. A person is protected from any original process or proceeding in any other district than that whereof he is an inhabitant. Id. This is his personal privilege, and he may waive that. Trust Co. v. McGeorge, 151 U.S. 129, 14 Sup.Ct. 286, 38 L.Ed. 98. But the provision quoted applies to the suit, and it limits the jurisdiction to suits brought only in the residence either of plaintiff or of defendant. Even if it could be waived, the mere presence of the defendant at an examination of witnesses, taken before issue made up, and in anticipation, would not be a waiver of any objection to the jurisdiction. It is only a very proper precaution. It is said that the proper mode of objection to the declaration was by plea in abatement, and that by omission to enter such plea the objection was waived. An objection to the jurisdiction of a circuit court of the United States for want of the requisite citizenship of the parties is not waived by filing a demurrer for the special and single purpose of objecting to the jurisdiction, or by answering to the merits upon that demurrer being overruled. Southern Pac. Co. v. Denton, 146 U.S. 202, 13 Sup.Ct. 44, 36 L.Ed. 377. 'Under the judiciary act of 1789, an issue as to the fact of citizenship could only be made by a plea in abatement when the pleadings properly averred the citizenship of the parties. But the act of 1875 imposes on the circuit court the duty of dismissing a suit if it appears at any time after it is brought, and before it is finally disposed of, that it does not really and substantially involve a controversy of which it may properly take cognizance. Williams v. Nottawa Tp., 104 U.S. 209, 26 L.Ed. 719; Farmington v. Pillsbury, 114 U.S. 138, 5 Sup.Ct. 807, 29 L.Ed. 114; Little v. Giles, 118 U.S. 596, 7 Sup.Ct. 32, 30 L.Ed. 269. And the statute does not prescribe any particular mode in which such fact may be brought to the attention of the court. ' Morris v. Gilmer, 129 U.S., at page 326, 9 Sup.Ct. 292, 32 L.Ed. 694. The crucial question is, was the plaintiff, at the date the action was brought, a citizen and a resident of the state of West Virginia? The jurisdiction depends on the state of the parties at the commencement of the suit. No subsequent change of citizenship can affect it. Conolly v. Taylor, 2 Pet. 556, 7 L.Ed. 518; Anderson v. Watt, 138 U.S. 694, 11 Sup.Ct. 449, 34 L.Ed. 1078; Morgan v. Morgan, 2 Wheat. 297, 4 L.Ed. 242.

At the beginning of this suit the plaintiff had his home and family at Clifton Forge, in the state of Virginia. He had lived at Clifton Forge from 1893, or the beginning of 1894, up to that time, owned his house there, voted there. He had been born in the state of West Virginia, and had lived at Huntington, in that state. He removed to Clifton Forge, Va., and had changed his domicile. Was this change made animo manendi? By this term is not meant the hope and expectation which so many entertain who leave their homes for business purposes or to better their fortunes,-- of some day returning to the place of their birth, and there to reap the reward of their efforts. But did he go to Virginia intending to make it his home so long as his business required it? He had no home elsewhere. He established his home at Clifton Forge by buying a house and putting his family in it. He paid his taxes there. As has been seen, he cast his vote there. In his application for his policy he stated his residence to be Clifton Forge, May 21, 1897. In his claim notice, September 5, 1897, he states his name, and his residence as Clifton Forge, Va. The policy states him to be of Clifton Forge, Va 'Among the circumstances usually relied on to establish the animo manendi,' says the court in Mitchell v. U.S., 21 Wall. 353, 22 L.Ed. 584, are declarations of the party, the exercise of political rights, the payment of personal taxes, a house of residence, and a place...