Jones v. Landry

• Decision Date: 11 December 1967
• Docket Number: No. 24590.,24590.
• Citation: 387 F.2d 102
• Parties: Brown JONES, Appellant, v. Lynda A. LANDRY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

387 F.2d 102 (1967)

Brown JONES, Appellant, v. Lynda A. LANDRY et al., Appellees.

No. 24590.

United States Court of Appeals Fifth Circuit.

December 11, 1967.

James A. Wysocki, New Orleans, La., for appellant.

C. Gordon Johnson, Jr., New Orleans, La., for appellees.

Before RIVES, GOLDBERG and AINSWORTH, Circuit Judges.

RIVES, Circuit Judge:

The district court, after a hearing and oral argument, but without opinion and by a brief order,¹ dismissed this action for lack of jurisdictional amount. We reverse.

Federal jurisdiction was based on diversity of citizenship. The complaint alleged that the amount in controversy exceeds the sum of $10,000.00 exclusive of interest and costs; that the vehicle driven by the defendant ran into the rear of the plaintiff's vehicle upon a public highway; that, "as a direct result of this accident, plaintiff sustained personal injuries and related damages"; and further, "as a direct result of this accident, plaintiff was damaged in the full sum of ONE HUNDRED THOUSAND AND NO/100 ($100,000.00) DOLLARS"; that the sole proximate cause of the accident and of plaintiff's resulting injuries and damages was the negligent operation of the vehicle driven by the defendant Lynda Landry. The plaintiff demanded a trial by jury.

There is no complaint as to the dismissal of the defendant State Farm Mutual Automobile Insurance Company for lack of the jurisdictional amount, since its liability insurance coverage is only $5,000.00. The individual defendant, Lynda Landry, filed a separate motion to dismiss for lack of jurisdictional amount. That motion cast the burden on the plaintiff to sustain the court's jurisdiction by competent proof.²

The only evidence offered by either party consisted of certain unsworn physicians' reports and the answers of the plaintiff to the defendant's interrogatories, which were not sworn to by the plaintiff himself, but by his attorney on information and belief. There was, however, no objection to the evidence and both parties considered this unsworn material to be properly before the court.³

The test of the amount in controversy is, of course, not the amount ultimately recovered but the amount claimed by the plaintiff in good faith.⁴ As was said in the leading case of St. Paul Mercury Indemnity Co. v. Red Cab Company, 1938, 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845:

"The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed."

Again in that case, it was said:

"His good faith in choosing the federal forum is open to challenge not only by resort to the face of his complaint, but by the facts disclosed at trial, and if from either source it is clear that his claim never could have amounted to the sum necessary to give jurisdiction there is no injustice in dismissing the suit." 303 U.S. at 290, 58 S.Ct. at 591.

The test of the plaintiff's "good faith" is not his subjective state of mind but a very strict objective standard. As was stated in Horton v. Liberty Mutual Ins. Co., 1961, 367 U.S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890:

"The general federal rule has long been to decide what the amount in controversy is from the complaint itself, unless it appears or is in some way shown that the amount stated in the complaint is not claimed `in good faith.\' In deciding this question of good faith we have said that it `must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.\'"

Thus, there is but one test; good faith and legal certainty are equivalents rather than two separate tests. Wright, Federal Courts, § 33, p. 95. The burden which the plaintiff bore was simply to prove his good faith measured by the standard of legal certainty that the plaintiff cannot recover as much as the jurisdictional amount.

The answers of the plaintiff to the interrogatories propounded by the defendant were to the effect that "plaintiff sustained severe abrasions and contusions of both legs * * * strain of back muscles * * * impairment of arterial circulation in the left lower extremity * * * aggravation of femoral artery." The eleventh interrogatory and its answer read as follows.

"11 — Please state whether or not you are claiming any of your injuries are of a permanent nature and, if so, which of said injuries."

"11. Yes, injuries are of such a nature that plaintiff has never been able to resume gainful employment as a result of injuries received on June 23, 1965."

Plaintiff's answers further disclose that "plaintiff never returned to work subsequent to date of accident, June 23, 1965. Prior to that had worked for Southern Railroad for twenty-three years and was receiving $482.17 a month."

Letters and reports from the several physicians attached to the defendant's memorandum in support of the motion to dismiss show no more than "contusions and abrasion — post scalp (R) Leg (L) Leg Resulting from Auto Accident," "Laceration posterior scalp and abrasion right anterior leg, and left leg." One of the reports also notes that "the patient will never be able to work," and "hypertension and cystolic murmur," noted to be not accident connected. Another report notes "gangrene of his left foot resulting from arteriosclerosis obliterans and this has no connection whatsoever with any automobile accident." On motion for rehearing of the dismissal, the plaintiff offered a letter from another physician who had not examined the plaintiff but nonetheless expressed the view that, "While it is not possible to be certain that the accident was the only cause of the femoral artery obstruction, there is Dr. Polizzi's statement that Mr. Jones had sustained severe lacerations of the scalp and contusions and abrasions of both legs. From this I would infer that trauma was applied in many areas to Mr. Jones's body. It is highly probable that the trauma aggravated a pre-existing condition of arteriosclerosis and therefore made it much more likely for Mr. Jones to have a femoral artery obstruction than would have been the case without this trauma." The district judge denied the motion for rehearing.

The strictness with which the "legal certainty" test is applied by the Supreme Court is illustrated by the case of Bell v. Preferred Life Assur. Society, 1943, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15. There, the complaint alleged that the plaintiff had been induced to purchase a certificate of insurance through fraudulent misrepresentations by the defendant's agent as to its value, and claimed $200,000.00 as actual and punitive damages. The record showed that the plaintiff had paid $202.35 on the certificate and that the certificate, upon death or final surrender, had a maximum potential value of $1,000.00. Nonetheless, the court held that it was not apparent to a legal certainty that the plaintiff could not recover in addition sufficient punitive damages to make up the then requisite $3,000.00, and that it was no answer to contend that a verdict, if rendered for that amount, would be excessive and set aside for that reason.

Again, in a much earlier case, Barry v. Edmunds, 1886, 116 U.S. 550, 559, 6 S.Ct. 501, 506, 29 L.Ed. 729, the Court said:

"It might happen that the judge, on the trial or hearing of a cause, would receive impressions amounting to a moral certainty that it does not really and substantially involve a dispute or controversy within the jurisdiction of the court. But upon such a personal conviction, however strong, he would not be at liberty to act, unless the facts on which the persuasion is based, when made distinctly to appear on the record, create a legal certainty of the conclusion based on them."

The defendant relies upon two Fifth Circuit cases Leehans v. American Employers Ins. Co., 1959, 273 F.2d 72; Matthiesen v. Northwestern Mutual Ins. Co., 1961, 286 F.2d 775. Purporting to follow those decisions, several district judges have granted motions for dismissal after hearing evidence as to the extent of plaintiff's injuries.⁵

Referring to those two Fifth Circuit cases and to the First Circuit case of Turner v. Wilson Line of Mass., Inc., 1957, 242 F.2d 414, Professor Wright has said:

"Such action comes dangerously close to depriving plaintiff of his right to a jury trial as to damages. The sounder result seems that of the Third Circuit, which holds that where the damages recoverable turn on intangible factors to be weighed ultimately by the jury, it is not justifiable to say in advance that a verdict in excess of the jurisdictional amount would not be

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