451 F.2d 289 (3rd Cir. 1971), 19416, Nelson v. Keefer

Docket Nº:19416-19418.
Citation:451 F.2d 289
Party Name:Ernest NELSON, 3rd, a minor, by his parents and natural guardians, et al., Appellant in No. 19416. v. Ernest KEEFER and Frank Keefer v. Howard BRINKLEY and Walter G. Locke, Third Party Defendants. Appeal of Ernest J. NELSON, Jr., in No. 19417. Appeal of Patsy NELSON, in No. 19418.
Case Date:November 15, 1971
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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451 F.2d 289 (3rd Cir. 1971)

Ernest NELSON, 3rd, a minor, by his parents and natural guardians, et al., Appellant in No. 19416.


Ernest KEEFER and Frank Keefer


Howard BRINKLEY and Walter G. Locke, Third Party Defendants.

Appeal of Ernest J. NELSON, Jr., in No. 19417.

Appeal of Patsy NELSON, in No. 19418.

Nos. 19416-19418.

United States Court of Appeals, Third Circuit.

November 15, 1971

Submitted on Briefs Sept. 24, 1971.

As Amended Dec. 17, 1971.

Page 290

[Copyrighted Material Omitted]

Page 291

Bernard J. McAuley, Wayman, Irvin, Trushel & McAuley, Pittsburgh, Pa., for appellants.

William K. Herrington, Weis & Weis, Pittsburgh, Pa., for appellees Ernest Keefer and Frank Keefer.

Arthur R. Gorr, Stein and Winters, Pittsburgh, Pa., for appellee Locke.

Before VAN DUSEN, ALDISERT and GIBBONS, Circuit Judges.


ALDISERT, Circuit Judge.

These appeals question the propriety of dismissing a personal injury diversity action at pre-trial because the district court concluded that it appeared "to a legal certainty" that the claims were "really for less than the jurisdictional amount" 1 of $10,000. 2


* * *

Appellants concede that the court had the power to determine the facts requisite to jurisdiction, Wetmore v. Rymer, 169 U.S. 115, 18 S.Ct. 293, 42 L.Ed. 682 (1898), but contend that the cause should not have been terminated at pre-trial because of the possibility of adducing proof later as to the extent of the injuries.

Thus posited, the issue is whether the facts alleged at pre-trial supporting the complaint were legally insufficient to give rise to a $10,000 claim. St.Paul Mercury Indemnity Co. v. Red Cab Co., supra; Gray v. Occidental Life Insurance Co. of California, 387 F.2d 935 (3rd Cir. 1968); Jaconski v. Avisun Corp., 359 F.2d 931 (3rd Cir. 1966); Wade v. Rogala, 270 F.2d 280 (3rd Cir. 1959). It is appropriate to emphasize that "this court has taken the lead in recognizing diversity jurisdiction over an entire lawsuit in tort cases presenting closely related claims based, in principal part at least, on the same operative facts and normally litigated together, even though one of the claims, if litigated alone, would not satisfy a requirement of diversity jurisdiction." 3 Thus, if any of the three plaintiffs meets the jurisdictional amount, we will extend hospitality to the other claims. 4

In their combined pre-trial statement, appellants allege that, as a result of an automobile accident caused by defendant's negligence, the minor son sustained a thoracic lumbar sprain, and, as of August 20, 1968-three years after the August 21, 1965 injury-he had incurred a physician's bill of $95.50, hospital expenses

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of $15.00, and a $25.78 bill for a back brace. Reports of physicians indicate that he was seen by them on four occasions: August 21, 1965, September 1, 1965, November 29, 1965, and February 6, 1968. X-rays taken on August 24, 1965, and November 26, 1965, were negative.

The wife-plaintiff was diagnosed as having sustained a hematoma of the skull, neck lash, and contusions of the right shoulder and right ribs. She was seen by her physician on August 23, 1965, and had an x-ray taken on August 25, 1965, which proved negative. The physician issued a report on October 31, 1966, revealing treatment on August 23, 1965, for which he submitted a bill for $163.00. The bill for the x-rays at St. Luke's Hospital amounted to $65.00, and there was an additional Mercer College Hospital bill for $30.00.

The husband-father supported his claim with the following:

Dr. Brown ............ $322.75

St. Luke's Hospital ... 262.75

Drugs .................. 18.00

Property Damage ....... 727.69

Dr. Brown's report of October 31, 1966, indicated that Nelson's first treatment was on August 24, 1965, that the diagnosis was "neck lash, bruise left shoulder, pain over lumbar region with tenderness over spleen" and that Nelson "still has pain in neck and shoulder." It is significant that in the 1966 report, Dr. Brown made no attempt to relate the accident to Nelson's hospitalization from August 25 to 28, 1965, which apparently was treatment for "[d]iarrhea, undetermined etiology," including x-rays showing duodenal ulcer symptomotalogy. In analyzing Nelson's medical expenses, the trial court characterized the bills of the physician and hospital as "of doubtful relation of entire bill to the accident because the hospital treatment and Dr. Brown's records deal mostly with his treatment for diarrhea and pre-existing hemorrhoids." Indeed, in answers to interrogatories, Nelson stated "no loss of compensation (from employment) is being claimed," and to the question: "How much time in weeks and days did you lose from work as a result of the injuries sustained in the accident," he responded, "Not applicable."

Before we apply these facts to the appropriate law, it becomes necessary to observe that other circuits have attributed more sweep to the rule of Wade v. Rogala, supra, than is set forth in the holding of the case. 5

We did not there say that in all cases where there were intangible factors such as pain, suffering and inconvenience, the cause was required to be submitted to a jury. We did say that "[t]he necessary choice, except in the flagrant case, where the jurisdictional issue cannot be decided without the ruling constituting at the same time a ruling on the merits, is to permit the cause to proceed to trial." 270 F.2d at 285.

It is our intention to require removal from the trial list of those "flagrant" cases where it can be determined in advance "with legal certainty" that the congressional mandate of a $10,000 minimum was not satisfied. Although adhering to Wade v. Rogala, we have subsequently stated:

There is small difficulty in applying this rule when the damages claimed are liquidated, but when the damages are unliquidated, as in the instant case, there is no exact yardstick to measure recovery even when most, if not all the operative facts are known. One of the tools developed for determining the intangible factors relating to the amount in controversy is the requirement that a plaintiff must claim the necessary amount in "good faith". * * *

* * * [T]he basic criterion for determining "good faith" is that "[i]t

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must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. [283] 288-289, 58 S.Ct. [586] 590 [82 L.Ed. 845] (1938). See also Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961); Brough v. Strathmann Supply Co., Inc., 358 F.2d 374 (3 Cir. 1966). The test then is not what amount the plaintiff claims in the ad damnum clause of his complaint, but rather, whether it appears to a "legal certainty" that he cannot recover an amount above the jurisdictional minimum. Cumberland v. Household Research Corp. of America, 145 F.Supp. 782 (D.Mass.1956); Cohen v. Proctor & Gamble Distributing Co., 16 F.R.D. 128 (D.Del.1954). It follows, therefore, that in order to find a plaintiff's claim lacking in "good faith", the court must be able to conclude from the record before him that the plaintiff cannot recover a sum by way of damages above the $10,000 jurisdictional floor.

Jaconski v. Avisun Corp., supra, 359 F.2d at 934, 935. 6

We are not persuaded by the argument that a termination prior to trial deprives a "plaintiff of his present statutory right to a jury trial." See Deutsch v. Hewes Street Realty Corp., supra, 359 F.2d at 100. Indeed, such an argument begs the question, for the precise issue is whether plaintiff has a statutory right to enter the courtroom for any trial, jury or otherwise. The corollary suggestion that the remedy lies with Congress is similarly specious, 7 for the reality is that Congress did act in 1958 in raising the amount in controversy from $3,000 to $10,000. 8

The stated purpose of the 1958 amendment as urged by the Judicial Conference of the United States was to:

make jurisdiction available in all...

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