145 F.Supp. 782 (D.Mass. 1956), Civ. A. 55-468, Cumberland v. Household Research Corp. of America

Docket Nº:Civ. A. 55-468
Citation:145 F.Supp. 782
Party Name:Cumberland v. Household Research Corp. of America
Case Date:November 09, 1956
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 782

145 F.Supp. 782 (D.Mass. 1956)

Catherine A. CUMBERLAND

v.

HOUSEHOLD RESEARCH CORP. OF AMERICA d/b/a White Cross Home Products Co. and Francis A. Nolan, d/b/a Copley Chemical Co.

Civ. A. No. 55-468.

United States District Court, D. Massachusetts

Nov. 9, 1956

Page 783

W. Arthur Garrity, Jr., Maguire, Roche, Garrity & Maloney, Boston, Mass., for plaintiff.

Paul Frederick, Boston, Mass., for defendant Household Research Corp.

Thomas D. Burns, Boston, Mass., for defendant Francis A. Nolan.

ALDRICH, District Judge.

This is an action brought by a resident of Virginia, hereinafter called buyer, against Household Research Corporation, a Massachusetts seller, and one Nolan, a Massachusetts manufacturer, hereinafter called maker, of a household disinfectant whose tradename I will abbreviate to Pine. At the conclusion of the evidence defendants moved for directed verdicts, which were denied. The jury having returned verdicts for $5,000, the defendants now move for judgment n.o.v., or in the alternative, for a new trial.

One ground of the first motion is alleged to be lack of the jurisdictional amount. Strictly, of course, I could not direct verdicts because of this, as that would mean a decision on the merits. Norwood Lumber Corp. v. McKean, 3 Cir., 153 F.2d 753. However, since absence of jurisdiction can be noted at any time, and 'the mode of its determination is left to the trial court.' Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111, I will treat the motions in this aspect as motions to dismiss.

The case is to be judged as of the time of bringing suit. The fact that the evidence may not have developed to justify a verdict of $3,000 is not determinative. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845. On the other hand, the ad damnum in the complaint does not control. At one time there appears to have been some thought that an excessive ad damnum was 'an attempted fraud upon the jurisdiction of the court,' see Barry v. Edmunds, 116 U.S. 550, 561, 6 S.Ct. 501, 507, 29 L.Ed. 729, which sometimes still carries over into discussions of the plaintiff's 'good faith.' See St. Paul Mercury Indemnity Co. v. Red Cab Co., supra, 303 U.S. at page 288, 58 S.Ct. at page 590. Yet it is clear, when the chips are down, that subjective good faith of a particular plaintiff is not the test. A study will be made of the facts, not of the plaintiff's state of mind. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; Food Fair Stores v. Food Fair, 1 Cir., 177 F.2d 177. The question is, simply, does it appear as a legal certainty, viewing the claim in its most favorable light, that $3,000 could not be recovered? The fact that the claim is unliquidated does not prevent a finding that it could not be. Wilderman v. Roth, 3 Cir., 17 F.2d 486; Nixon v. Town Taxi, Inc., D.C.D.Mass., 39 F.2d 618. Examining the instant claim in its most favorable light, however, I am not prepared to say that...

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