Baltimore And Ohio Railroad Co. v. Ryan
| Decision Date | 17 November 1903 |
| Docket Number | 4,507 |
| Citation | 68 N.E. 923,31 Ind.App. 597 |
| Parties | BALTIMORE AND OHIO RAILROAD COMPANY v. RYAN, ADMINISTRATRIX |
| Court | Indiana Appellate Court |
From Porter Circuit Court; W. C. McMahan, Judge.
Action by Mary E. Ryan, administratrix of the estate of Thomas J Ryan, deceased, against the Baltimore & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Pam Calhoun & Glennon and W. H. Dowdell, for appellant.
N. L Agnew, for appellee.
The appellant has questioned in this court the jurisdiction of the court below, in which its application for the removal of the cause to the circuit court of the United States for the district of Indiana was denied. The appellee sued as administratrix of the estate of Thomas J. Ryan, deceased, to recover damages for causing his death by negligently running a locomotive engine and tender against him on a street crossing in the city of Chicago, Illinois. There were two paragraphs of complaint, in each of which the damages were laid in the sum of $ 2,000, and at the close of each paragraph the appellee, in the same language, demanded judgment for that amount, and all other and proper relief in the premises.
In the verified petition for removal the appellee was said to be a citizen and resident of this State, and the appellant was alleged to be a corporation duly incorporated under the laws of another state named, and a citizen thereof, having its principal office there; and it was claimed in the petition that the matter in dispute, exclusive of interest and costs, exceeded the sum or value of $ 2,000.
It is suggested as a reason why, upon the filing of the petition and bond, the cause should have been removed, that the aggregate of the damages demanded in the complaint was $ 4,000. We can not accept this view. It is manifest that in each paragraph the same person in the same right seeks damages for the death of the same person wrongfully caused by the appellant's servants, and that each paragraph relates to the same time and place and the same occurrence. While each paragraph purports to set up a cause of action independently, there could not be a recovery for the aggregate amount of the damages demanded in both paragraphs. There could be a recovery only for one death, the damages from which the appellee did not claim to be greater than $ 2,000, to which amount her damages would necessarily be limited. "By matter in dispute is meant the subject of litigation--the matter for which the suit is brought--and upon which issue is joined, and in relation to which jurors are called and witnesses examined." Lee v. Watson, 1 Wall. (U. S.) 337, 17 L.Ed. 557. Where it thus affirmatively and clearly appears on the face of the complaint that all of the paragraphs of the complaint, consisting of more than one paragraph, are based upon one and the same occurrence, the statement being varied merely to meet the evidence as it may appear on the trial by alleging some other or additional negligent conduct, the amount of the one cause of action should be controlling; and, if damages be not claimed in excess of $ 2,000 in any of such paragraphs, the cause should not be removed because of the amount in controversy. The amount in controversy was the amount demanded in the complaint. Lake Erie, etc., R. Co. v. Juday, 19 Ind.App. 436, 49 N.E. 843; Western Union Tel. Co. v. Levi, 47 Ind. 552.
There were not several causes of action arising out of one transaction or occurrence, but a single cause of action, though stated somewhat differently in the different paragraphs. Brownell v. Pacific R. Co., 47 Mo. 239. If the plaintiff in such case should obtain in his favor either a general verdict, or a verdict on one count, this would bar a further recovery for the death of the intestate. The amount in dispute was not modified by the formal prayer for all other and proper relief in the premises, there being no proper relief other than the pecuniary remedy demanded. Baltimore, etc., R. Co. v. Worman, 12 Ind.App. 494, 40 N.E. 751.
The appellant, in its brief, refers to a statute of Illinois which is set out in each paragraph of the complaint, authorizing such suit brought by and in the name of the personal representatives of the deceased person, it being provided that the amount recovered shall be for the exclusive benefit of the widow and next of kin, and the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of the deceased person, not exceeding the sum of $ 5,000; and thereupon it is contended upon behalf of the appellant that the administratrix had no authority to sue for less than $ 5,000 without the approbation of the court which appointed her, and that the amount legally in issue was that sum. Such an action is one for the recovery of unliquidated damages. The damages, by the terms of the statute, are to be such as the jury shall deem a fair and just compensation, having reference, in estimating and awarding them, to the pecuniary injuries resulting to the wife and next of kin. The statute does not designate the amount recoverable, but fixes the sum of $ 5,000 as the limit which may not be exceeded by the jury. Of course, that amount can not properly be awarded if it should be more than sufficient to compensate such resulting injuries. The court, in acting upon the petition for removal, can not determine that in the particular case a greater amount might be recovered than that of the damages demanded, but, for the purposes of the application for removal, must conclude that no more can be recovered in the action than the amount laid and claimed as damages. The position thus taken by counsel may perhaps be regarded as not quite consistent with the claim that the matter in controversy was $ 4,000, the sum of the amounts separately laid and claimed in each paragraph as damages. To be consistent, it should perhaps have been claimed that two distinct causes...
To continue reading
Request your trial