Henderson v. Maryland Casualty Co.

• Decision Date: 14 January 1933
• Docket Number: No. 6474.,6474.
• Citation: 62 F.2d 107
• Parties: HENDERSON et al. v. MARYLAND CASUALTY CO.
• Court: U.S. Court of Appeals — Fifth Circuit

62 F.2d 107 (1932)

HENDERSON et al. v. MARYLAND CASUALTY CO.

No. 6474.

Circuit Court of Appeals, Fifth Circuit.

December 10, 1932.

Rehearing Denied January 14, 1933.

C. E. Bryson and William V. Brown, both of Texarkana, Tex., for appellants.

Rollin W. Rodgers, of Texarkana, Tex., for appellee.

Before BRYAN, SIBLEY and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Ammie Henderson and her children sought by suit in a state court to set aside an unfavorable award by the Industrial Accident Board and to recover for the death of their husband and father, Freeman Henderson, under the provisions of the Texas Workmen's Compensation Law, Rev. St. 1925, art. 8306 et seq., as amended. The defendant insurer, Maryland Casualty Company, because of diversity of citizenship removed the suit to the District Court of the United States, which overruled a motion to remand and on trial directed a verdict for the defendant. These rulings are assigned as error.

The original petition claimed that Henderson's average weekly wages were $13.50, on which basis under the terms of the statute a fixed recovery of $2,916 was due, which sum was sued for. The petition for removal set up that the true figure for average weekly wages was $16.95, and was not in doubt or dispute, and that $3,661.20 was the amount of recovery due under the statute, if anything was due, and was the true amount in controversy; and that the lesser amount had been fraudulently and untruthfully alleged to defeat the jurisdiction of the United States courts. On a trial of the motion to remand, plaintiff's counsel admitted that $16.95 was the true wage, and that the lesser amount had been alleged to prevent removal, but contended that it was a voluntary reduction of the demand which was permissible and prevented a recovery of more than $2,916, citing Maryland Casualty Co. v. Sledge (Tex. Civ. App.) 46 S.W.(2d) 442; and therefore that sum was the amount actually in controversy. Cases like Woods v. Massachusetts Protective Association (D. C.) 34 F.(2d) 501, were cited to justify such voluntary reduction to prevent removal, and also such as Thompson v. Butler, 95 U. S. 694, 24 L. Ed. 540, Alabama Gold Ins. Co. v. Nichols, 109 U. S. 232, 3 S. Ct. 120, 27 L. Ed. 915, and Pacific Postal Telegraph Co. v. O'Connor, 128 U. S. 394, 9 S. Ct. 112, 32 L. Ed. 488, where there were holdings that verdicts and judgments might by authority of the trial court be reduced before appeal to prevent recourse to the Supreme Court. On the other hand were cited state court decisions holding that credits on a liquidated demand could not be entered without defendant's consent so as to bring the claim within the jurisdiction of an inferior court, such as Pecos & North Texas Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, and the cases touching fraudulent joinder of parties to prevent removal were also referred to. The reduction as made was not positive and final like a credit entered upon a note, but might at any time have been withdrawn by an amendment alleging the truth. Such an amendment was in fact made so soon as the motion to remand was overruled. This amendment we think waived and cured any error that may have been made in refusing the remand. The controversy really was one within the jurisdiction of the District Court, and the pleadings thereafter showed it. The plaintiffs thenceforward were invoking the court's jurisdiction to recover $3,661.20. While asserting this claim, they could no longer maintain the inconsistent position that only $2,916 was involved. They are estopped to do so. Compare New Lamp Chimney Co. v. Brass & Copper Co., 91 U. S. at page 659, 23 L. Ed. 336; Davis v. Wakelee, 156 U. S. 681, 15 S. Ct. 555, 39 L. Ed. 578.

We think the instructed verdict was right. The Texas statute places the burden of proof on the plaintiffs. Article 8307, § 5. They must affirmatively show that the death of the employee arose from an injury...