The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 931
xv, 1025 p. ; 23 cm.View a full description of this legislative document.
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BJORNQUIST V. BOSTON & A. R. CO.
ing been admitted at the trial, we think we should consider the case
as though a plea in abatement or an answer in abatement raising the
jurisdictional question had been filed. The burden of proof, however,
still remains on the defendant on this issue.
The decisions m Lindsay-Bitton Live Stock Co. v. Justice, 191 Fed.
163, 111 C. C. A. 525, Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct.
781, 36 L. Ed. 579, and C., B. & Q. Ry. Co. v. Willard, 220 U. S.
413, 31 Sup. Ct. 460, 55 L. Ed. 521, are not applicable, as the practice
prevailing in the jurisdictions in which they arose differs materially
from that in Massachusetts.
The accident occurred on the 12th of August, 1899. The plaintiff
was born at Worcester, Mass., April 29, 1891. He lived there up to
the time of his mother's death, when he moved to Cambridge with
his father, who died shortly thereafter. In the latter place he lived
with his uncle, Alfred Wiggin, for about 5 years. It was while he
was living in Cambridge that the accident occurred. Shortly after
the accident his uncle moved to Arlington Heights, and the plaintiff
continued to live with him until 1910. He then went to Maine to
live with an aunt, intending to make his permanent home there. He
was at this time 19 years old. He remained in Maine until the fall of
1912. The present action was brought April 17, 1911, while he was
residing in that state. In the fall of 1912 his aunt and her husband
left Maine and moved to Massachusetts, and he returned there with
them.
In the District Court the jury was directed to return a verdict for
the defendant. The plaintiff excepted, and this writ of error was pros-
ecuted.
[3] The defendant contends that, on the facts above stated, the Dis-
trict Court was without jurisdiction to entertain the action; that, the
plaintiff having been born in Massachusetts, and his parents having
been domiciled there at the time of their death, his residence and
domicile continued during his minority to be in Massachusetts, not-
withstanding his removal to Maine, and, the action having been brought
before he reached his majority, the requisite diversity of citizenship
was wanting, to confer jurisdiction on the District Court.
It is undoubtedly true that the general rule is that a minor is in-
capable of changing his domicile and acquiring a new one during his
minority; that he has the domicile of his father, if living, and, if he is
dead, that of the mother (Lamar v. Micou, 112 U. S. 452, 5 Sup. Ct.
221, 28 L. Ed. 751); that, if both father and mother are dead, by
taking up his residence with his grandfather, or, if he is dead, with
his grandmother, he may, in that way, acquire a domicile (Lamar v.
Micou, 114 U. S. 218, 222, 5 Sup. Ct. 857, 29 L. Ed. 94).
The reason stated for the general rule is that a minor is non sui
juris, which no doubt, as here applied, means that a person who is
under the power and authority of another possesses no right to choose
a domicile. Hart v. Lindsey, 17 N. H. 235, 43 Am. Dec. 597. Under
the common law the father is the natural guardian of the minor, and
entitled to his custody and control until he reaches majority; and
the same is true of the mother (the father having died), and, if she
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38821/m1/946/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.