MAHON V. SOMERS et al. (Circuit Court, N. D. Ohio, E. D. April 15, 1901.) REMOVAL OF CAUSES-DIVERSITY OF CITIZENSHIP-JoinDER OF UNNECESSARY Plaintiff brought an action in a state court against a domestic partnership and a corporation of another state to recover damages for breach of contract. The petition alleged that plaintiff contracted with the partnership for a quantity of coal for future delivery; that after part performance the partnership was absorbed by the corporation, which assumed the contract with plaintiff's consent; that after making some deliveries thereunder the corporation repudiated the contract, and refused further performance when demanded. A second count alleged that such refusal was due to a combination between the corporation and others to enhance the price of coal, in violation of a state statute, by the provisions of which plaintiff was entitled to recover punitive damages. Held, that the petition stated but a single cause of action, which was the breach of the contract; that the statute pleaded did not affect the character of the action, which remained a civil action for damages, but merely enhanced the damages recoverable; that by reason of the novation pleaded the members of the partnership were not necessary nor proper parties, and the cause was removable by the corporation defend ant.1 On Motion to Remand to State Court. Foran, McTighe & Baker, for plaintiff. Squire, Sanders & Dempsey, for Pittsburgh Coal Co. WING, District Judge. In this suit the cause of action disclosed by the petition is a contract entered into between the plaintiff and J. H. Somers and C. W. Somers, trading and doing business as the J. H. Somers Fuel Company, a partnership, for the delivery by the latter of a certain amount of coal at a stipulated price; that after such contract had been to a certain extent performed, the Pittsburgh Coal Company, a corporation and a citizen of the state of Pennsylvania, assumed the further performance of the contract, by and with the assent of the plaintiff. The petition states that the plaintiff "was informed that from and after this 1st day of November, 1899, the contract entered into by and between him and J. H. Somers Fuel Company would be assumed, carried out, and executed by the Pittsburgh Coal Company, which had absorbed J. H. Somers Fuel Company, succeeded to all its rights and properties, and assumed all of its contracts and obligations; and the plaintiff says that he assented to the assumption of his contract by the Pittsburgh Coal Company," and that thereafter the Pittsburgh Coal Company shipped a certain amount of coal, in accordance with the terms of said contract; that on November 11, 1899, the Pittsburgh Coal Company repudiated the said contract, and refused to perform it, and denied that they were bound thereby; and that although the plaintiff has frequently requested the defendants, the Pittsburgh Coal Company and J. H. Somers Fuel Company, to carry out the 1 Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298; Emigra tion Co. v. Gallegos, 32 C. C. A. 479, par. v. C 0 contract, they have refused; and plaintiff says that he is informed and believes that the J. H. Somers Fuel Company informed the Pittsburgh Coal Company of its contract with this plaintiff, and that the Pittsburgh Coal Company assumed and accepted the contract of the J. H. Somers Fuel Company as its own contract with this plaintiff, and that, after partly performing, it has refused further to perform. It is further stated in the petition that, by reason of this refusal to furnish him coal, he was obliged to buy coal in the market at a higher price than that named in the contract, to fulfill obligations which he had entered into upon the faith that such original contract would be kept and performed. These allegations disclose that a contract existed between the plaintiff and the Pittsburgh Coal Company by novation. The original contract between the plaintiff and the J. H. Somers Fuel Company was assumed by the Pittsburgh Coal Company with the assent of the plaintiff. This would operate as a release of the J. H. Somers Fuel Company. The right of action, then, would be for damages for the failure of the Pittsburgh Coal Company to do that which it was bound to do by the contract. As a second cause of action, it is alleged that the breach of the contract to deliver coal, sued upon, was occasioned by a combination entered into by the defendants and others for the purpose of enhancing the price of coal, and that, by reason of the acts of the defendants, the plaintiff is entitled to recover more than compensatory damages, in accordance with the terms of an act of the legislature of the state of Ohio of April 19, 1898. There is but a single cause of action set forth in the whole petition, to wit, the breach of a contract to deliver coal, and resultant damage. The right, whether by common law or by statute, to recover punitive damages, does not deprive the case of its character as an action of a civil nature. So far as the statute referred to affects this case, it is only to prescribe a different measure of damages recoverable by one injured. J. H. Somers and C. W. Somers, doing business as the J. H. Somers Fuel Company, are neither necessary nor proper parties, as appears by the allegations of the petition. At all events, the first cause of action set forth is a separable cause of action, in which the Pittsburgh Coal Company is alone concerned as defendant. The fact that by the second cause of action there is attempted to be recovered a greater amount of damages than could be recovered in the absence of the statute does not prevent removal. The motion to remand is overruled. COLLINS v. CITY OF ASHLAND. (District Court, E. D. Kentucky. December 14, 1901.) 1. JURISDICTION OF FEDERAL COURTS-DIVERSITY OF CITIZENSHIP. If diversity of citizenship exists at the time suit is brought in a federal court, jurisdiction will not be ousted by the fact that plaintiff has since become a citizen of the same state as defendant.1 1 Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298. 2. SAME CITIZENSHIP-DOMICILE AS DISTINGUISHED FROM RESIDENCE. A plaintiff's citizenship, for the purposes of the jurisdiction of a federal court, depends upon his domicile, which is a different thing from his residence, and may be in a different state. 8. SAME BURDEN OF PROOF AS TO CITIZENSHIP. Where a petition alleges the necessary diverse citizenship to give the court jurisdiction, the burden of alleging and proving that plaintiff was a citizen of the same state as defendant, to defeat the jurisdiction, rests upon the defendant; but proof that he resided in such state at the time the action was brought is sufficient prima facie, and shifts to plaintiff the burden of showing that his domicile, and consequent citizenship, was not the same as his residence. 4. DOMICILE-CHANGE OF RESIDENCE-INTENT. A person does not lose his domicile and citizenship in one state by removing to another to reside temporarily, and with the intention of returning to his former residence at a definite time in the future. 5. SAME EVIDENCE OF INTENTION. Upon the question of a person's intention in changing his residence, as affecting his domicile, while his actions are the best evidence, his own testimony may be considered, and will be controlling, where it is not inconsistent with his actions or declarations. 6. JURISDICTION OF FEDERAL COURTS-CITIZENSHIP OF PLAINTIFF EVIDENCE OF CHANGE OF DOMICILE. Plaintiff in an action in a federal court against a city in Kentucky alleged that he was a citizen of Ohio when the action was commenced. On a plea traversing such allegation, and alleging that he was a citizen of Kentucky, the evidence showed that he was a native of Ohio, and, until three months before the action was brought had always resided there, except for two temporary removals, after each of which he had returned; that he worked in defendant city, but owned a house across the river, in Ohio, where he resided until October before the action was brought, in January, when he removed across the river into Kentucky, as he testified, to be nearer his work during the winter, and with the intention of returning in the spring. He did not in fact return in the spring after the action was commenced, but gave satisfactory reasons for not doing so, and testified that it had ever since been his intention to return the following spring. He retained his house in Ohio, and voted there in the fall after his removal, and had never voted in Kentucky. Held, that such evidence was insufficient to show a change of domicile, to defeat the jurisdiction of the court. At Law. On plea to jurisdiction. D. W. Steele, Jr., for plaintiff. COCHRAN, District Judge. This action was brought on the 18th day of January, 1901, by the plaintiff, Edward T. Collins, who alleges in his petition that he was then a citizen and resident of the county of Lawrence and state of Ohio, against the city of Ashland, a municipal corporation of this state, to recover damages for personal injuries. The defendant has filed a plea to the jurisdiction of the court, in which it denies that the plaintiff, at the time this suit was brought, was a citizen or resident of the state of Ohio, and alleges that he was at that time, and long prior thereto had been, a citizen and resident of the state of Kentucky. The plaintiff has filed a reply to this plea, denying the allegation that he was then a citizen and resident of the state of Kentucky. This plea has been submitted to the court for trial upon the pleadings, and upon proof taken by depositions. From that proof this state of facts appears: In September or October, 1900, the plaintiff, with his family, was residing in Perry township, Lawrence county, Ohio, upon a place containing about five acres, which he had previously purchased a year or so before, and where he had been continuously residing from the time of his purchase. At that time he moved with his family and household goods to the city of Ashland, Ky., and he has continued to reside there ever since. He has been employed during that time at the Clinton Firebrick Works, located in that city. He still owns the place in Ohio before referred to. The plaintiff seems to have been born in the state of Ohio, and to have lived there ever since, except for the time above mentioned, for a portion of time in the year 1894, and from November, 1896, to June, 1898, during which two earlier periods he resided in the city of Ashland with his family, and was employed there since September or October, 1900. During the period from November, 1896, to June, 1898, while living in Ashland, he paid a poll tax to the city. He is past 30 years of age, and has always voted in Lawrence county, Ohio. He voted there at the November election, 1900, and at the November election, 1899. He did not vote in November, 1901. He has never voted in Ashland, Ky., or at any other place than in Lawrence county, Ohio. He testifies positively and distinctly that he has all his life claimed Lawrence county, Ohio, as his home, and that his residence in the city of Ashland at the times above stated was merely temporary. He states that when he moved with his family to Ashland in September or October, 1900, he then had the intention of returning in the spring to Lawrence county, Ohio; that he did not return in accordance with his intention, because the tenant to whom he had rented the place in the meantime until the 1st of March, 1901, was not willing to give up possession, but that really he would not have returned at that time anyhow, because he owed some debts in the city of Ashland, and he feared that, if he attempted to move, away, his creditors might attach his goods; and that it is his present intention to return there next spring. He states that he paid the poll tax above referred to because he thought he was compelled to do so. The question in this case is as to the citizenship of the plaintiff at the time this suit was brought, in January, 1901. It is entirely immaterial that the plaintiff may have acquired citizenship in Kentucky since, on account of what may have transpired since; for it is well settled that, if diverse citizenship exists at the time suit is brought, jurisdiction will not be ousted by the fact that it is done away with after suit is brought. This is so decided in Salt Co. v. Brigel, 30 C. C. A. 415, 86 Fed. 818, and in Louisville, N. A. & C. R. Co. v. Louisville Trust Co., 174 U. S. 552, 19 Sup. Ct. 817, 43 L. Ed. 1081. The sole value, therefore, of what has transpired since this suit was brought, is its bearing, if any, upon the question of citizenship at that time. Citizenship depends upon domicile, and, as domicile and residence are two different things, it follows that citizenship is not determined by residence. In the case of Sharon v. Hill (C. C.) 26 Fed. 337, Deady, J., said: Citizenship' and 'residence,' as has often been declared by the courts, are not convertible terms." 112 F.-12 And in the case of McDonald v. Flour Mills' Co. (C. C.) 31 Fed. 577, Deady, J., said: "A person may be a citizen of one state or country, and reside for the time being in another." The burden of showing that plaintiff's domicile and consequent citizenship was in Kentucky, and not in Ohio, as alleged in the petition, was on defendant. In the case of Association v. Sparks, 28 C. C. A. 399, 83 Fed. 225, Riner, J., said: "It is the well-settled rule in the federal courts that when the plaintiff's petition, as in this case, sets out the necessary diverse citizenship of the parties, the burden of both allegation and proof rests upon the party who seeks to defeat it." But though the ultimate fact to be determined is domicile, and consequent citizenship, and not residence, yet the latter fact is evidential of the former. It is prima facie evidence of it, and, nothing else appearing, shifts the burden of evidence to the plaintiff. In the case of Anderson v. Watts, 138 U. S. 694, 11 Sup. Ct. 449, 34 L. Ed. 1078, Mr. Chief Justice Fuller said: "The place where a person lives is taken to be his domicile until facts adduced establish the contrary." . And in the case of McDonald v. Flour Mills' Co., supra, Deady, J., said: “And while residence, as a fact, is prima facie evidence of citizenship, it is not conclusive of the question." The burden of evidence was therefore on the plaintiff to show that his domicile, and consequent citizenship, was not the same as his residence, at the time suit was brought. This he could do, as it is sometimes put, by showing that it was not his intention when he changed his residence from Ohio to Kentucky, in September or October, 1900, or whilst he resided in the latter state, up to the time the suit was brought, to make that his permanent home, but that, on the contrary, it was his intention to reside there only temporarily, and thereafter to return to Ohio. In the case of Railroad Co. v. Carroll, 28 C. C. A. 207, 84 Fed. 772, Pardee, Circuit Judge, said: "The defendant in error merely changed his residence temporarily without affecting a change of domicile, and while absent in Mississippi he was simply a sojourner, there being no fixed intention to remain. The animo manendi was wanting, without which a change of domicile may not be accomplished. The act of removal, and the intention to remain in the new place of abode, must both concur to effect a change of domicile; and, if either of these ingredients be lacking, the old domicile simply remains, and the new one is not acquired." See, also, the case of Caldwell v. Firth, 33 C. C. A. 439, 91 Fed. 177. But it is better to say that it is necessary for him to show, also, that it was not his intention to remain in Kentucky an indefinite time, but to return therefrom to Ohio at some definite time. In the case of Morris v. Gilmer, 129 U. S. 315, 9 Sup. Ct. 289, 32 L. Ed. 690, Mr. Justice Gray said: "He went to Tennessee without any present intention to remain there permanently or for an indefinite time, but with the present intention to |