Cumberland v. Household Research Corp. of America

Decision Date09 November 1956
Docket NumberCiv. A. No. 55-468.
Citation145 F. Supp. 782
PartiesCatherine 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.
CourtU.S. District Court — District of Massachusetts

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 $3,000 was not involved, regardless of how I might feel about this particular verdict.

Turning to the merits, the plaintiff testified that she purchased a bottle of Pine disinfectant which stated on the label that it was useful for cleaning bathrooms, etc., but harmful if swallowed. No other caution was given. For washing floors, etc., the directions specified a certain number of spoonfuls per gallon of warm water. The plaintiff testified that on June 29, 1954, before she opened her house "at the beach" she cleaned it from top to bottom, and spent two hours or more washing floors and woodwork with a solution of water, Spic and Span, and Pine. There was no evidence that it was harmful to add Spic and Span to Pine; nor did defendants' directions warn against including other ingredients. The evidence warranted a finding that no more Pine was used than the directions called for. During this washing the plaintiff had her hands almost constantly in the solution. She also splashed it on her feet, on which she wore open sandals. When she finished her hands were pink. Thereafter they became red, and began to burn "as if in an oven." Her arms and legs, also, became affected. Her condition was diagnosed as contact dermatitis, or an acute inflammation of the skin, due either to the Spic and Span, or to the Pine. She consulted a local doctor, and on July 9 and 12 visited a skin specialist, who gave her "small doses" of X-ray treatments. Her medical expense was $40. She also testified that she purchased various lotions and medications at a cost of about $90. For three weeks she said she stayed in bed, except when she was too nervous to remain there. Her skin blistered and swelled, particularly badly on the back of her hands, and discharged liquid. The irritation was intense. Her sleep was interfered with. On at least two occasions she screamed into her pillow. She cried when she went to the skin specialist. She testified that he described her as being in shock. At the end of three weeks her skin had entirely recovered, except for a scaly condition of the knuckles and back of the hands, but she testified she remained weak the balance of the summer, and never left the house. She modified this to not leaving the grounds, but insisted she never went even to the beach. For five weeks her sister-in-law did the house-work for her; for several months she was unable to do extra-heavy work, and she "did not get over the shock * * * until into the winter."

While I do not believe that substantial damages are unwarranted, I find it hard to recognize $5,000 as a reasonable figure even on the testimony in its most favorable light. I further believe plaintiff very considerably exaggerated her condition. It is of some significance that she had no medical treatment after July 14, which is not too compatible with the lengthy debilitation to which she testified. The skin specialist who she said told her she was "in shock," when asked whether her condition "involved any pain," testified "No pain, but severe itching and discomfort." In contradistinction to her testimony that she paid $90 for medications, he testified that she had had penicillin, and that he prescribed a zinc lotion. Both she and her husband testified that their original demand upon the defendant seller's representative was only for medical expenses, which are insignificant compared with what she now claims was her injury, although these demands were made after she had already largely recovered, and made no mention of the substantial disability she now claims.1 Furthermore, if the plaintiff suffered as badly as she claimed, I find it very difficult to understand...

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5 cases
  • Nelson v. Keefer
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 15, 1971
    ...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......
  • Magee v. Wyeth Laboratories, Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • March 22, 1963
    ...Revlon, Incorporated, 251 Iowa 141, 100 N.W.2d 5, 7-9; Vanoven v. Hardin (Ark.), 344 S.W.2d 340, 343; Cumberland v. Household Research Corp. of America (D.C.Mass.), 145 F.Supp. 782, 785; Hanrahan v. Wallgreen Co., 243 N.C. 268, 90 S.E.2d 392, 393; Annotation entitled 'Unusual Susceptibility......
  • Jaconski v. Avisun Corporation, 15420.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 13, 1966
    ...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......
  • National Surety Corporation v. Chamberlain
    • United States
    • U.S. District Court — Northern District of Texas
    • March 2, 1959
    ...35 C.J.S. Federal Courts § 82 p. 920; 15 C.J. p. 773. I quote from the following cases so holding: Cumberland v. Household Research Corp. of America, D.C.Mass., 145 F. Supp. 782 at page 783: "The jurisdictional amount * * is to be judged as of the time of bringing suit * * * St. Paul Mercur......
  • Request a trial to view additional results

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