252 F. 910 | W.D. Va. | 1918
1. These actions for libel were consolidated for trial, without objection from any party, as _both. cases grew out of the same publication. The first case was, after some of the plaintiffs’ evidence had been heard, dismissed without prejudice for want of diversity of citizenship, which ruling was excepted to by both Pannill and the defendant. The defendant is a corporation created by the state of Virginia. The plaintiff was born in West Virginia, and in his early manhood went to Oklahoma, where he bought a farm near Lawton, and was living there with the intention of residing in that state permanently. In 1910 he met with an accident which resulted in almost entire paralysis. His own means were shortly exhausted in efforts to be cured, and as he was and had been before his injury a member of the Lawton local lodge of Elks, he applied through his local
Some few months after Pannill had established himself in California, the Lawton lodge found itself unable to raise from its few members the share of the expenses it had undertaken to contribute, which resulted in a refusal by the Grand Lodge to continue its contributions. Thereupon Pannill left California and commenced a tour of the United States in an effort to induce the Elks to establish a fund for his support without reference to contributions from the Lawton lodge, which had surrendered its charter. Pannill testified that when he left California he had the intention of never returning to that state at any time, and all the facts adduced substantiated this statement. His intention was, if successful in his quest, to take up his abode in Florida or Texas. He had no plans based on the possibility of entire want of success of this last campaign among the Elks. He left California in 1915, and had been traveling since then, making short stops in many cities and towns, and had covered about 40,000 miles. The expenses of Pannill and his nurse had been mainly obtained from local lodges of Elks, from individual members of that order, and in some cases transportation had been obtained from other charitable organizations. The plaintiffs had come to Virginia a few weeks before these actions were instituted, not intending to stay permanently, but only to stay long enough to institute, and possibly to bring to a conclusion, a suit by Pannill against the Grand Lodge on what he conceives to be a valid cause of action against that body.
As has been said, Pannill’s Case was ordered dismissed for want of jurisdiction. As the term at which the order of dismissal was made has not been brought to an end, and as the question of Pannill’s citizenship is to me novel and rather perplexing, I have taken advantage of the first opportunity to give it further consideration.
“In the sense of the Constitution and of the Judicial Act, he who is incorporated into the body ol’ the state, by permanent residence therein, so as to become a member of it, must be a citizen of that state, although bom in another. Or, to use the phrase more familiar in the books, a citizen of the United States must be a citizen of that state in which his domicile is placed.”
But here, also, the court was dealing with a case of actual domicile and an intent to return to it. In Collins v. City of Ashland (D. C.) 112 Fed. 175, 177, it is said that “citizenship depends upon domicile.” But in that case the evidence showed a domicile in Ohio, a merely temporary residence in Kentucky, and a clear intent to return to Ohio. In Harding v. Standard Oil Co. (C. C.) 182 Fed. 421, 426, it is said that domicile is usually coextensive in meaning with citizenship; but in this case also (pages 428 and 430) the court finds that the plaintiff, after his departure from Illinois, always had the intention to return to that state, and consequently the case is not one in which, as in the case at bar, the departure from the state of domicile was with intent never to return there. In Hammerstein v. Lyne (D. C.) 200 Fed. 165, 170, it is said that state citizenship is the practical equivalent of domicile. But here again the court had in view an actual domicile animo revertendi.
“A person may be a citizen of the United States, and not a citizen of any particular state. This is the condition of citizens residing in the District of Columbia, and in the territories of the United States, or who have taken up a residence abroad, and others that might be mentioned. A fixed and permanent residence or domicile in a state is essential to the character of citizenship that will bring the case within the jurisdiction of the federal courts.”
2. The Pannill Case having been dismissed for want of jurisdiction, the trial of the Jerrick Case proceeded until all the evidence was in. At this juncture defendant moved for a directed verdict. When this motion was submitted, and before giving any intimation as to my decision thereon, I required plaintiff’s counsel to then elect whether he would or would not suffer a voluntary nonsuit. He elected to suffer a nonsuit. Thereupon counsel for defendant excepted to the ruling permitting the plaintiff to then take a nonsuit.
(a) I have very little hesitation in holding that a plaintiff,' after a motion by the defendant for a directed verdict has been submitted, has no absolute right to then suffer a nonsuit. The Virginia statute (section 3387, Code 1904), providing that “a party shall not be allowed to suffer a nonsuit, unless he do so before the jury retire from the bar,” does not seem to me to govern here, because it has never been the accepted Virginia practice to direct verdicts (section 3384b, Hurst’s Code Va. 1913; Acts 1912, p. 52; Taylor v. B. & O. R. Co., 108 Va. 817, 819, 62 S. E. 798; Hargrave v. Shaw Land Co., 111 Va. 84, 90, 68 S. E. 278, Ann. Cas. 1912A, 151). Consequently the statute, which has been in force since 1788 (12 Henning’s St. at Targe, 749; 1 Shepherd’s St. at Targe, 33; 1 Code 1819, p. 510; 1 Code 1849, p. 672; Code 1887, § 3387), never contemplated, and does not apply
“From the time of the submission of the motion to instruct a verdict the granting of a nonshit lies wholly in the discretion of the court.”
This ruling (see, also, Francisco v. Chicago & A. R. Co., 149 Fed. 354, 359, 79 C. C. A. 292, 9 Ann. Cas. 628), while not followed in some of the other circuits (Meyer v. National Biscuit Co., 168 Fed. 906, 94 C. C. A. 335; Knight v. Illinois Cent. R. Co., 180 Fed. 368, 373, 103 C. C. A. 514), requires tire conclusion in this court that the plaintiff had no absolute right to a nonsuit, and also that there was a discretionary power in the court to grant the nonsuit.
“The plaintiff upon the malting of a motion to instruct a verdict against him * * * should then elect whether or not he will take a non-suit. * * * ”
See, also, upholding the right of the court to refuse to allow a nonsuit after announcing its conclusion to direct a verdict, Huntt v. McNamee, 141 Fed. 293, 72 C. C. A. 441 (C. C. A. 4th Circuit); Barrett v. Virginian R. Co., 244 Fed. 397, 157 C. C. A. 23 (C. C. A. 4th Circuit).
And, independent of authority, the ruling made was dictated by considerations of fairness. A plaintiff should not, in circumstances
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