Stultz v. Cousins

• Decision Date: 05 June 1917
• Docket Number: 2961.
• Parties: STULTZ et al. v. COUSINS.
• Court: U.S. Court of Appeals — Sixth Circuit

242 F. 794

STULTZ et al. v. COUSINS.

No. 2961.

United States Court of Appeals, Sixth Circuit.

June 5, 1917

[Copyrighted Material Omitted]

H. H Shelton, of Winston-Salem, N.C., for plaintiffs in error.

James B. Cox and W. W. Belew, both of Johnson City, Tenn., for defendant in error.

Before WARRINGTON, MACK, and DENISON, Circuit Judges.

MACK Circuit Judge.

Action of libel by defendant in error against the 35 plaintiffs in error and Slagle, who was subsequently dismissed from the case, resulted in a verdict and judgment thereon for $3,400.

The parties were all members of the Erwin, Tenn., local of the Brotherhood of Locomotive Firemen and Enginemen and were employed as firemen on the Carolina, Clinchfield & Ohio Railway, which had its operating headquarters there. By custom, the preferred runs and promotion to enginemen were confined to white men, and, subject to examination, were given on the basis of seniority. Cousins was senior to 32 of the 36 defendants. As only white men were admitted to the brotherhood, applicants for membership were required to answer the question of race. Cousins had stated that he was a white man. After an investigation of rumors that he was a mulatto, he was expelled from the local on the charge of having falsely answered questions. Thereupon the following letter, which constituted the alleged libel, was written and sent on behalf and at the request of all of the defendants to the master mechanic of the railway:

Brotherhood of Locomotive Firemen and Enginemen, Clinchfield Lodge No 763.

December 30, 1913.

Mr. H. F. Staley, M.M., Erwin, Tenn.-- Dear Sir: Some time ago evidence came into our possession of Isaac Cousins not being full-blooded white, and by a unanimous vote of the members of the B. of L.F. & E. he, Isaac Cousins, was expelled from the Brotherhood on account of falsely answering questions. By request of the Brotherhood I, as chairman, ask that the run he holds be vacated on the grounds that he is a nonpromotable man. If you desire any further evidence of the above being one-quarter negro, please notify us at once, and we will furnish you with same.

Yours respectfully,

W. L. Spratt, Chairman.

This letter resulted in Cousins' loss of the preferred run and his transfer to a nonpreferred run.

In the caption of the declaration Cousins was alleged to be a citizen of North Carolina and the defendants citizens of Tennessee. The declaration was in three counts: The first, which the jury was in substance instructed to disregard, was based upon the theory that the letter charged a crime in plaintiff's having married and lived with a white woman in Tennessee, contrary to the Tennessee statute. The third count was based upon the theory of malicious interference with plaintiff's contract of employment. The second, upon which the trial clearly appears to have proceeded, alleged the libel in general terms, and also specified the loss of the preferred run as special damages. We proceed to a consideration of the alleged errors.

1. Diversity of citizenship was properly averred; no issue was tendered thereon, and no inquiry instituted by the court. Defendant Martin, a citizen and resident of Tennessee prior to July, 1914, testified, however, that at that time he and his family moved to the District of Columbia; that he 'went there indefinitely; I didn't have any certain length of time to stay'; that he never lived in Tennessee since then; and that he had moved to North Carolina after the action had been begun. This indefinite residence in the District of Columbia in November, 1914, when the action was brought, falls far short of sustaining the burden placed on defendant (Chase v. Wetzlar, 225 U.S. 79, 86, 32 Sup.Ct. 659, 56 L.Ed. 990) of establishing change of domicile, and a consequent loss of citizenship in Tennessee. There is no evidence that the change of residence was anything but temporary, and without an intention either to give up the old or to remain in the new home. As the jurisdiction of the court, once acquired, continues, regardless of any change in citizenship (Clarke v. Mathewson, 12 Pet. 164, 9 L.Ed. 1041) the subsequent removal to North Carolina is immaterial.

2. As an injured party may sue one or more or all joint tort-feasors, so, too, he may dismiss as to any defendant; and, as the court was without jurisdiction of Slagle, his dismissal before submission of the cause to the jury was entirely proper.

3. Whether a single request to instruct for the defendant on the second and third counts may be deemed equivalent to separate requests for such a charge on each of these counts, so as to require the reversal of a judgment on a general verdict under the authority of Wilmington Mining Co. v. Fulton, 205 U.S. 77, 27 Sup.Ct. 412, 51 L.Ed. 708, because the third count was unsupported by the evidence, need not be determined, inasmuch as the record fails to disclose that an exception was taken to the refusal of the court to grant this request, either at the time (Johnson v. Garber, 73 F. 523, 19 C.C.A. 556; Phelps v. Mayer, 15 How. 160, 14 L.Ed. 643; Miller & Lux, Inc., v. Petrocelli, 236 F. 846, 852, 150 C.C.A. 108; and cases cited), or at the trial in open court...