McLaughlin, Hastie and Smith, Circuit Judges.
McLAUGHLIN, Circuit Judge.
In this diversity personal injury tort action the jury found diversity of citizenship between the parties and verdicts in favor of the plaintiffs and against the defendant. The latter appeals.
The claim of the plaintiffs was that on August 18, 1961, Mrs. Ramsey was a customer of the defendant's branch bank at Aliquippa, Pennsylvania. On that day she walked into the bank and transacted her business. As she was leaving the premises she was either proceeding through the exit door or had moved through the door when she stepped on a mat in which the heel of one of her shoes became caught causing her to fall or be thrown down and to sustain resultant injuries. The issues of negligence of the bank, of contributory negligence and of the nature and extent of Mrs. Ramsey's injuries were all strongly contested. Prior to reaching those problems we are confronted with a major trial question arising out of the serious jurisdictional dispute in the case.
The complaint filed April 2, 1962, alleged that the plaintiffs were citizens of Florida and the defendant corporation a citizen of Pennsylvania. The answer was filed April 20, 1962 and admitted diversity of citizenship. Defendant agreed that plaintiffs were citizens of Florida at the time the complaint was filed in a pretrial stipulation filed December 31, 1962. Pretrial was held January 2, 1963. On May 7, 1963, defendant filed a petition to amend its answer which stated that defendant on May 2, 1963 had discovered evidence that the husband plaintiff was a citizen of Pennsylvania on April 2, 1962, the date the complaint was filed. Defendant's petition also asked that the claim of Wayne A. Ramsey be dismissed. On May 7, 1963 an amendment to the answer covering this was ordered filed.*fn1 On May 31, 1963 the district court denied defendant's motion to dismiss the complant of Wayne A. Ramsey on the ground that an issue of fact existed regarding his residence or citizenship when the complaint was filed. The order thereon stated that "* * * it appearing that there is an issue of fact raised with respect to Plaintiffs ' residence or citizenship, and it appearing that the cause is on the current Trial List, it is ordered that the Motion be and the same hereby is denied without prejudice to consideration of said issue at trial or to such rulings as the Trial Judge may see fit to make with respect to order of proof or preliminary separate trial of the issue as to citizenship." (Emphasis supplied). On June 13, 1963, defendant filed an amended pretrial statement in which it said that it would prove that Wayne A. Ramsey had been a citizen of Pennsylvania when his complaint was filed. The statement detailed specific proof the defense would present on that point.
On June 14, 1963 plaintiffs filed a supplemental pretrial statement in which they said they would prove at the trial that they and their children were all citizens of Florida on April 2, 1962 and detailed the proofs they said they would submit in this connection. In addition, they added to their list of liability witnesses two names with a summary of the expected testimony of one of those witnesses. The defense moved to strike the new liability names and the evidence statement. The motion was heard August 14, 1963 and briefs were ordered filed. The court on September 10, 1963 denied the motion. On October 17, 1963, both sides stipulated that no alternate jurors would be called for the trial of this case and agreed if the number of jurors "* * * is reduced to eleven or ten, that the verdict of the jury will be accepted." They further agreed to waive the recording of the voir dire. The trial started October 17, 1963 and concluded October 25, 1963.
Immediately before the start of the trial on October 17, 1963, the attorneys for the parties moved that the court decide the diversity issue as a matter of law. The plaintiffs' attorney finally withdrew his motion. The judge denied the defense motion saying that he would treat this as a "* * * question of fact for the time being."
The next day the court, because of the stipulation of December 31, 1962 above referred to, ruled that diversity was an affirmative defense. A little later it stopped the defense cross-examination of Mr. Ramsey with reference to his residency at the time the suit was filed. The court said, "This is all out at the present time due to my ruling this morning that this becomes an affirmative defense."
On direct examination Mr. Ramsey, asked how long he had lived in Florida, said, "I bought my home down there two years ago." He gave the date as September 28, or 29, 1961. He said he sold his Pennsylvania home on August 28, 1961. He stated his reason for this was "We -- my wife and I had decided to move to Florida." Mr. Ramsey's entire family consisted of his wife, himself and their two sons aged 12 and 16 respectively. In March 1962 he left Florida because of the employment situation there. He had a leave of absence from his Pennsylvania employer. He stated he went back to Florida in February and then gave the year as "'62" and repeated this. He meant 1963, as his counsel states in his brief. In any event regarding the following February he said "I didn't stay too long, because I went down at that particular time to check the work situation, plus I had to file my homestead rights in the State of Florida." His attorney said those rights were filed in March 1962.
The defense queried the court with respect to proofs of diversity being taken first "* * * because if at the end of that you decide there is no diversity, that is the end." The court answered, "I am not going to decide that. I have already told you this is a question of fact that will go to the jury, unless you can show me by law it must be that." (Emphasis supplied).
After plaintiffs' case had closed, the defense called Mr. Ramsey for cross-examination as the first witness. He said he had been in Pennsylvania from March 15, 1962 to July 1963. He gave other details with respect to the general inquiry as to whether he had been a citizen of Florida or of Pennsylvania on the date his complaint was filed, April 2, 1962. There is no need for us to explore that testimony in depth at this time. There was also testimony regarding Mr. Ramsey's Pennsylvania employment records and the Pennsylvania school records of the Ramsey children.
After the close of all of the testimony, in denying the defense motion to dismiss, the court said to counsel for the defendant regarding the ground for the lack of jurisdiction:
"This court has not put the burden upon you to prove jurisdiction. It has put the burden upon you to prove residence after a stipulation had been filed in which there was an agreement that ...