Jones v. Drewry's, Limited, USA, 8602.

Decision Date15 May 1945
Docket NumberNo. 8602.,8602.
Citation149 F.2d 250
PartiesJONES v. DREWRY'S, LIMITED, U. S. A., Inc.
CourtU.S. Court of Appeals — Seventh Circuit

Lenn J. Oare, of South Bend, Ind. (Seebirt, Oare & Deahl, of South Bend, Ind., of counsel), for appellant.

M. Edward Doran, of South Bend, Ind., and Ben Schwartz, of Cleveland, Ohio (Rocker & Schwartz, of Cleveland, Ohio and Doran & Manion, of South Bend, Ind., of counsel), for appellee.

Before SPARKS and MINTON, Circuit Judges, and LINDLEY, District Judge.

MINTON, Circuit Judge.

The plaintiff sued the defendant under a statute of Indiana1 for the wrongful death of his son. The jurisdiction was based upon diversity of citizenship, and in the complaint it was alleged that the matter in controversy was in excess of $3,000, and judgment was prayed for in the sum of $10,000. Trial was had by jury and the jury returned a verdict for the plaintiff in the sum of $2,500. The defendant made a motion to dismiss for want of jurisdiction, alleging that the matter in controversy as shown by the evidence did not exceed $3,000, the jurisdictional amount. The motion was overruled. The only error urged here is the ruling upon that motion.

Before the motion could be granted, the court must be convinced on the record to a legal certainty that the claim is for less than the jurisdictional amount. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L. Ed. 845. Recovery of an amount less than the jurisdictional amount does not show bad faith in the plaintiff or oust the jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Co., supra. The measure of damages in Indiana in a case of this kind is "the value of the child's services from the time of the death until he would have attained his majority, taken in connection with his prospects in life less the cost of his support and maintenance during that period, including such board, clothing, schooling and medical attention." Thompson v. Town of Fort Branch, 204 Ind. 152, 164, 178 N.E. 440, 444, 82 A.L.R. 1413. In considering the pecuniary value of such services, the jury may properly take into consideration the condition in life of the family and the pecuniary value of acts of kindness rendered by the child. The Louisville, New Albany and Chicago Railroad Co. v. Rush, 127 Ind. 545, 26 N.E. 1010.

The boy was killed on December 27, 1940. Had he lived until the ninth day of the following September, he would have been twenty-one years of age. At the time of his death he resided with his parents in the town of Granville, Ohio, where he attended Dennison University. He was in his third year in college, and was an intelligent, industrious, sober boy. His father ran a dry-cleaning establishment and in his spare time, the boy drove a truck for his father and, by soliciting on the campus of Dennison University, contributed to and increased the business of his father. His mother had students lodging in their home, and he helped her about the home in her housekeeping work by washing dishes, cleaning wall paper, making...

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8 cases
  • Hahn v. Moore
    • United States
    • Indiana Appellate Court
    • April 19, 1956
    ...services. Thompson v. Town of Fort Branch, 1931, supra, Pennsylvania Co. v. Lilly, 1881, 73 Ind. 252, 254; Jones v. Drewry's, Limited, U.S.A., Inc., 7 Cir., 1945, 149 F.2d 250, 251. Appellants also add that the jury may consider the condition of the decedent's family and the pecuniary value......
  • Herrick v. Sayler
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 8, 1957
    ...necessarily incurred by reason of any injury and resulting death, e. g., medical attention and funeral expenses. Jones v. Drewry's, Limited, U.S.A., 7 Cir., 149 F.2d 250; Hahn v. Moore, Ind.App., 133 N.E.2d 900, rehearing denied Ind.App., 134 N.E. 2d 705. At the time of the collision on Mar......
  • Wallace v. Woods, 1070A171
    • United States
    • Indiana Appellate Court
    • July 20, 1971
    ...of Fort Branch (204 Ind. 152, 178 N.E. 440) 1931, supra; Pennsylvania Co. v. Lilly, 1881, 73 Ind. 252, 254; Jones v. Drewry's, Limited, U.S.A., Inc., 7 Cir., 1945, 149 F.2d 250, 251. Appellants also add that the jury may consider the condition of the decedent's family and the pecuniary valu......
  • Mercer v. Byrons, 4653.
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 2, 1952
    ...R. Co. v. South Porto Rico Sugar Co., 1 Cir., 1923, 293 F. 670; Gray v. Blight, 10 Cir., 1940, 112 F.2d 696; Jones v. Drewry's, Limited, U.S.A., 7 Cir., 1945, 149 F.2d 250. There is nothing in the record that indicates the claims here were not made in good We find similar difficulty in agre......
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