WELLBORN, District Judge
(after stating the facts). The grounds of this motion, as argued in the briefs of the respective parties, are: First, insufficiency of the evidence to justify the verdict; second, misconduct of defendant’s attorney in his argument to the jury. Among the grounds formally stated in the notice of motion is also that of newly-discovered evidence. This ground, however, is not urged by plaintiffs in their brief, and, I presume, for the reasons that the evidence referred to is largely cumulative, and besides there is no showing that any diligence was used to produce it upon the trial. ,
Under the first of the two grounds above stated, namely, insufficiency of the evidence to justify the verdict, plaintiffs contend that the diverse citizenship of the parties, or, more specifically, the citizenship of plaintiffs in Missouri, was prima facie established, and there was nothing in rebuttal, and therefore the verdict was against the strength or weight of the evidence. If the premises indicated are correct, the conclusion stated necessarily follows. The salient inquiry, therefore, is, did the plaintiffs establish, prima facie, this branch of their case, and was there an absence of rebutting testimony? Citizenship, it must be remembered, is a mixed question of law and fact, and not unfrequently complicated and difficult of solution. In such cases the testimony of a party, however honestly given, that his or her citizenship is in a certain state, such testimony [373]*373being, not the statement of a simple fact, but an ultimate conclusion, involving the construction and application of legal rales, is far from being conclusive, when the particular facts upon which the citizenship depends are in evidence. The jury, therefore, were not bound to accept and act upon Mrs. Allen’s statement that she and her children, at the commencement of this action, were citizens of Missouri; on the contrary, it was their right and duty to find upon the issue of citizenship from all the evidence in the case. The first question for their determination was whether or not there had been a transfer of plaintiffs’ citizenship from Missouri to California. On (his question they could hardly have done otherwise than find affirmatively. The pertinent facts are these: The deceased, with his family, consisting of his wife and two minor children, the plaintiffs herein, resided in Kansas City, Mo., prior and up to August 1, 1892. On that day he left Kansas City for San Bernardino, Cal., and on the 16th of the same month went to work for the defendant in its yard at the last-named place. His family left Kansas City on thc”22d of September, same year, and reached San Bernardino during the latter part of the same month. Before she left Kansas Oily, Mrs. Allen, or she and the deceased, sold most of their household effects, retaining only such as were brought to California, and a. few articles which were sent to his mother’s house, in Mosby, Mo., at which place, however, they had never resided. At San Bernardino the deceased rented and furnished a house, which his family, upon their arrival, occupied. The employment he procured of the defendant, in Han Bernardino was similar to that which he had exercised for years before in Missouri. Thus he lived and worked in San Ber-nardino for five mouths, and up to the time of his death. None of these circumstances indicate a temporary, but, on the contrary, they all point to permanent, residence. Nor is there in the evidence, laying aside Mrs. Allen’s general statement as to plaintiffs’ citizenship, any thing contradictory of this conclusion. It is true that Mrs. Allen in one place testifies, “I had always intended to go back to Missouri”; and in another place, speaking of her return to Missouri, she says, “l made no visit; I simply went home”; and in another place, referring to her testimony in the state court, she says that she then testified that her residence was in San Bernardino, and, continuing, “but I didn’t consider that my’home.” These statements, however, even were they unchallenged, — which, as will appear later on, is not the ca.se, — fail to ‘establish that the citizenship of plaintiffs was not transferred to California, for- the obvious reason that this transfer depended, not upon her intention, but upon that of her husband; and nowhere in her testimony does she slate what his intention was. If, when his family came to San Bernardino, it was the intention of the deceased to permanently remain in California, he and they became citizens of said state. There is no direct testimony by Mrs. Allen as to what was the deceased’s intention, and it must, therefore, be inferred from all the fads of the case; and these facts, as I have just shown, concurrently point to an intention on the part of the deceased to make his permanent home in California.
[374]*374Assuming, then, that the evidence shows a transfer of plaintiffs' citizenship from Missouri to California, the next question is whether their citizenship was changed back to Missouri before the commencement of this action, and here the, controlling fact is the intention with which Mrs. Allen returned to Missouri in March, 1894. On this point the extracts from her testimony, which I have already quoted, are to the effect that she always intended to go back to Missouri, and never ceased to consider that state her home. Did these statements establish a prima facie case against which there was no rebutting testimony? To my mind, clearly not. The statements are antagonized by nearly all the facts to which she testified touching her removal to California, residence therein, return to and stay in Missouri, and subsequent return to California. Among these facts are the following: Abandonment by the deceased and his wife of the home they occupied in Kansas City, and sale of the most, of their furniture; the renting and furnishing of a house in San .Bernardino, and its occupancy by deceased and his family; and his procurement of and continuance in railroad work there, up to the time of his- death. These facts are supplemented by others, viz.: After Mr. Allen’s death, Mrs. Allen resided in the same house for a month, at the expiration of which time she rented the Eureka Lodging House, containing 22 rooms, in San Bernardino, and prosecuted business therein for several months. Some time in the year 1898, and prior to the month of July, she brought suit on this same cause of action in the state court at San Bernardino, and the suit was tried at that place during said month of July. Thereafter, and in August of the same year, Mrs. Allen removed to Los Angeles, and for more than six months was there engaged in keeping a lodging house in the Vickery Block, on Main street. She then rented a house on Buena Vista street, and bought furniture for the same, and remained there for two weeks, before her return to Missouri, leaving her father and mother in said house. In March, 1894, she went back to Missouri, to Mosby, the home of her mother-in-law, a place where neither she nor her husband had ever before resided, -liter an absence from California of four or five months, she returned, in August, 1894, and ‘continuously resided here up to the time of this trial. Nor do the circumstances attending her absence from California indicate a permanent residence elsewhere. During this period, she visited at several places, not only in Missouri, but Kansas. Shortly after leaving California — April 30, 1894 — she was appointed guardian ad litem of her minor children, for the purpose of this action. May 21, 1894, the complaint was verified by her in the county of Doniplian, state of Kansas.
Free access — add to your briefcase to read the full text and ask questions with AI
WELLBORN, District Judge
(after stating the facts). The grounds of this motion, as argued in the briefs of the respective parties, are: First, insufficiency of the evidence to justify the verdict; second, misconduct of defendant’s attorney in his argument to the jury. Among the grounds formally stated in the notice of motion is also that of newly-discovered evidence. This ground, however, is not urged by plaintiffs in their brief, and, I presume, for the reasons that the evidence referred to is largely cumulative, and besides there is no showing that any diligence was used to produce it upon the trial. ,
Under the first of the two grounds above stated, namely, insufficiency of the evidence to justify the verdict, plaintiffs contend that the diverse citizenship of the parties, or, more specifically, the citizenship of plaintiffs in Missouri, was prima facie established, and there was nothing in rebuttal, and therefore the verdict was against the strength or weight of the evidence. If the premises indicated are correct, the conclusion stated necessarily follows. The salient inquiry, therefore, is, did the plaintiffs establish, prima facie, this branch of their case, and was there an absence of rebutting testimony? Citizenship, it must be remembered, is a mixed question of law and fact, and not unfrequently complicated and difficult of solution. In such cases the testimony of a party, however honestly given, that his or her citizenship is in a certain state, such testimony [373]*373being, not the statement of a simple fact, but an ultimate conclusion, involving the construction and application of legal rales, is far from being conclusive, when the particular facts upon which the citizenship depends are in evidence. The jury, therefore, were not bound to accept and act upon Mrs. Allen’s statement that she and her children, at the commencement of this action, were citizens of Missouri; on the contrary, it was their right and duty to find upon the issue of citizenship from all the evidence in the case. The first question for their determination was whether or not there had been a transfer of plaintiffs’ citizenship from Missouri to California. On (his question they could hardly have done otherwise than find affirmatively. The pertinent facts are these: The deceased, with his family, consisting of his wife and two minor children, the plaintiffs herein, resided in Kansas City, Mo., prior and up to August 1, 1892. On that day he left Kansas City for San Bernardino, Cal., and on the 16th of the same month went to work for the defendant in its yard at the last-named place. His family left Kansas City on thc”22d of September, same year, and reached San Bernardino during the latter part of the same month. Before she left Kansas Oily, Mrs. Allen, or she and the deceased, sold most of their household effects, retaining only such as were brought to California, and a. few articles which were sent to his mother’s house, in Mosby, Mo., at which place, however, they had never resided. At San Bernardino the deceased rented and furnished a house, which his family, upon their arrival, occupied. The employment he procured of the defendant, in Han Bernardino was similar to that which he had exercised for years before in Missouri. Thus he lived and worked in San Ber-nardino for five mouths, and up to the time of his death. None of these circumstances indicate a temporary, but, on the contrary, they all point to permanent, residence. Nor is there in the evidence, laying aside Mrs. Allen’s general statement as to plaintiffs’ citizenship, any thing contradictory of this conclusion. It is true that Mrs. Allen in one place testifies, “I had always intended to go back to Missouri”; and in another place, speaking of her return to Missouri, she says, “l made no visit; I simply went home”; and in another place, referring to her testimony in the state court, she says that she then testified that her residence was in San Bernardino, and, continuing, “but I didn’t consider that my’home.” These statements, however, even were they unchallenged, — which, as will appear later on, is not the ca.se, — fail to ‘establish that the citizenship of plaintiffs was not transferred to California, for- the obvious reason that this transfer depended, not upon her intention, but upon that of her husband; and nowhere in her testimony does she slate what his intention was. If, when his family came to San Bernardino, it was the intention of the deceased to permanently remain in California, he and they became citizens of said state. There is no direct testimony by Mrs. Allen as to what was the deceased’s intention, and it must, therefore, be inferred from all the fads of the case; and these facts, as I have just shown, concurrently point to an intention on the part of the deceased to make his permanent home in California.
[374]*374Assuming, then, that the evidence shows a transfer of plaintiffs' citizenship from Missouri to California, the next question is whether their citizenship was changed back to Missouri before the commencement of this action, and here the, controlling fact is the intention with which Mrs. Allen returned to Missouri in March, 1894. On this point the extracts from her testimony, which I have already quoted, are to the effect that she always intended to go back to Missouri, and never ceased to consider that state her home. Did these statements establish a prima facie case against which there was no rebutting testimony? To my mind, clearly not. The statements are antagonized by nearly all the facts to which she testified touching her removal to California, residence therein, return to and stay in Missouri, and subsequent return to California. Among these facts are the following: Abandonment by the deceased and his wife of the home they occupied in Kansas City, and sale of the most, of their furniture; the renting and furnishing of a house in San .Bernardino, and its occupancy by deceased and his family; and his procurement of and continuance in railroad work there, up to the time of his- death. These facts are supplemented by others, viz.: After Mr. Allen’s death, Mrs. Allen resided in the same house for a month, at the expiration of which time she rented the Eureka Lodging House, containing 22 rooms, in San Bernardino, and prosecuted business therein for several months. Some time in the year 1898, and prior to the month of July, she brought suit on this same cause of action in the state court at San Bernardino, and the suit was tried at that place during said month of July. Thereafter, and in August of the same year, Mrs. Allen removed to Los Angeles, and for more than six months was there engaged in keeping a lodging house in the Vickery Block, on Main street. She then rented a house on Buena Vista street, and bought furniture for the same, and remained there for two weeks, before her return to Missouri, leaving her father and mother in said house. In March, 1894, she went back to Missouri, to Mosby, the home of her mother-in-law, a place where neither she nor her husband had ever before resided, -liter an absence from California of four or five months, she returned, in August, 1894, and ‘continuously resided here up to the time of this trial. Nor do the circumstances attending her absence from California indicate a permanent residence elsewhere. During this period, she visited at several places, not only in Missouri, but Kansas. Shortly after leaving California — April 30, 1894 — she was appointed guardian ad litem of her minor children, for the purpose of this action. May 21, 1894, the complaint was verified by her in the county of Doniplian, state of Kansas. August 4, 1894, she returns to Los Angeles, goes back to the house on Buena Vista street, at which she was staying when she left in March, and resides there, with her father and mother, from that time up to the trial, last April; her father and mother all the time being residents of this city. On the trial in the state eburt, she testified that her residence was at San Bernardino, making no reference whatever to the qualification suggested by her on this trial, that such residence was only temporary. To say that these circumstances do not point to [375]*375flic conclusion that slie intended permanently to live in California, is simply to ignore and disregard the teachings of all experience, because such circumstances are the usual accompaniments of permanent, but not temporary, residence. In this connection it is worthy of notice that the supreme court of California, in one case, where the intention with which a party executed a. deed was the pivotal point, held that the party («mid not testify as to what his intention was, but that Ms intention must be deduced from his acts and declarations at the time. Woods v. Whitney, 42 Cal. 362. In this case, the court says:
“There was no error in excluding (.lie questions propounded by the defendant at the time of tlio execution of the deed to the plaintiff. It was for tlio court to decide upon his intentions from his acts and conduct at the time. His secret, undisclosed intentions would he unavailing as against liis acts and declarations at (he time of the transaction.”
In another California case, where one of the questions involved was whether or not a. mining claim had been abandoned, and the claimant's intention was the controlling fact, he was permitted to testify what Ms intention was: hut Justice itoss, now the United States circuit judge for this circuit, delivering the opinion of the court, said:
“Abandonment is a question of intention, and of this intention the jury were to judge, and did judge, in view of all the facts and circumstances of the case. It is true, as slated in the brief of counsel for appellants, that Loathe testified at the trial that there was no intention by him or his co-locators to abandon the claims. But his testimony to that effect was not conclusive upon the jury. If that was so, it would follow' that all any party would have to do, in order to defeat the defense of abandonment, would be to say he did not intend to abandon. The intention, however, is to be derived, as already observed, from all tlio facts and circumstances of the case. Considering those facts and circumstances, the jury found for the defendants, and we cannot disturb the verdict on that ground.” Myers v. Spooner, 55 Cal. 260.
See, also, French v. Foley, 11 Fed. 801.
The case of Ennis v. Smith, 14 How. 400, cited in plaintiffs’ brief, does not bear upon the question of the weight which a party’s testimony, as to his intention, should receive, but simply holds that the prior declarations of tlio party are competent, “especially when made previous to the <;vent which gave rise to the suit.”
Clearly, plaintiffs did not have a prima facie case, uncontradicted by rebutting testimony. Many facts, testified to by Mrs. Allen herself, as 1 have already shown, fended to contradict her statement that she always purposed going back to Missouri. On this point the supreme court of the United Slates have said:
“Undoubtedly, as a general rule, positive testimony as to a particular fact, uncontradicted by any one, should control the decision of the court; but that rule admits of many exceptions. There may he such an inherent improbability in the statements of a witness,” etc. “He may be contradicted by the facts he states as completely as by direct adverse testimony,” etc. Quock Ting v. U. S., 140 U. S. 501, 11 Sup. Ct. 733, 851.
Under the rule' here enunciated it is impossible to do otherwise than conclude that the verdict was not against the strength or weight of the evidence.
[376]*376With reference to the second ground of the motion, to wit, misconduct of defendant’s attorney, it is only necessary to say that no-exception was reserved or taken at the trial, and therefore this matter, according to the procedure indicated in rule 23 of this court, and approved by most of the authorities, is closed to review. Crumpton v. U. S., 138 U. S. 361, 11 Sup. Ct. 355; Waldron v. Waldron, 156 U. S. 361, 15 Sup. Ct. 383; Chandler v. Thompson, 30 Fed. 38; Skaggs v. Given, 29 Mo. App. 612; People v. Shem Ah Fook, 64 Cal. 383, 1 Pac. 347; Bradshaw v. State, 17 Neb. 147; 22 N. W. 361. From this procedure there is no reason to depart in the present case, particularly in view of the opinion which I have expressed as to the sufficiency of the evidence to sustain the verdict. Motion for new trial denied.