Jones v. Smith, Civ. No. 515.

• Decision Date: 27 December 1965
• Docket Number: Civ. No. 515.
• Citation: 249 F. Supp. 624
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Daniel R. JONES, Plaintiff, v. Kent Douglas SMITH, Defendant.

249 F. Supp. 624

Daniel R. JONES, Plaintiff, v. Kent Douglas SMITH, Defendant.

Civ. No. 515.

United States District Court E. D. North Carolina, Elizabeth City Division.

December 27, 1965.

Russell E. Twiford, Elizabeth City, N. C., Louis J. Richman, of Bivins, Jacobs, Morrison & Richman, Newport News, Va., for plaintiff.

Dewey W. Wells, of LeRoy, Wells & Shaw, Elizabeth City, N. C., for defendant.

LARKINS, District Judge.

SUMMARY

This cause comes before the Court upon defendant's motion to dismiss on the grounds that the plaintiff could not have had reasonable expectations of sustaining damages of an amount adequate to sustain federal diversity jurisdiction.

The case came on to be heard by consent of the parties before this Court at New Bern, North Carolina, on November 24, 1965. Jury trial was waived and it was stipulated that the cause be heard by the Court on the issue of what amount, if any, the plaintiff might be entitled to recover of the defendant, Kent Douglas Smith, the issue of negligence having been agreed upon. It was previously stipulated that a voluntary dismissal of defendant, Ethel Smith Clary, be taken by the plaintiff.

Upon the conclusion of the evidence for the plaintiff, the defendant elected to offer no evidence but made the above stated motion. Before the Court, therefore, is the motion for dismissal for want of the jurisdictional amount required in a federal diversity action; or the question of damages to which plaintiff might be entitled.

FINDINGS OF FACT

Plaintiff was operating his automobile near Ahoskie, in Hertford County, North Carolina, on February 1, 1963. He was thereupon involved in a collision with an automobile driven by the defendant.

The collision which resulted from the negligence of the defendant (as was stipulated before trial), caused plaintiff's knees to strike the dashboard of the automobile. As a result of the blow to his knees plaintiff experienced some swelling and pain, with the greatest amount of discomfort being in the right knee. Plaintiff did not seek medical treatment on the day of the collision, February 1, 1963, nor did he seek treatment on the following day, February 2, 1963.

Taking the evidence in the light most favorable to the plaintiff, the following facts appear to be established:

(1) Plaintiff received a ten percent (10%) permanent disability to the right knee, which may cause some minor impairment to his ability to perform as a crane operator.

(2) An immediate loss of five days work which resulted in the monetary loss of $150.00 in wages.

(3) Medical expenses incurred at an amount of approximately $225.00.

(4) Plaintiff's estimated loss of earnings for the year 1963, in the amount of $500.00.

(5) Plaintiff's estimated loss of earnings for the year 1964, in the amount of $500.00. Both these estimates of loss of wages for the years 1963 and 1964 are highly speculative and unsupported by substantial evidence.

(6) Possible loss of wages in the future due to the alleged ten percent (10%) permanent disability to the knee. No estimated amount of future wages lost is submitted, nor are any substantial facts upon which a fact finder could base a judgment of future loss of wages submitted.

Actual monetary damages are, therefore, shown to be a maximum amount of $1,375.00, this maximum amount being highly speculative with special damages being shown only to the extent of $375.00.

The Court notes that no x-ray examination of plaintiff's knees has been made. Also, he was released from treatment by his physician, and discharged on May 4, 1963, having been determined "fully recovered."

CONCLUSIONS OF LAW

While the sum claimed by the plaintiff controls, if the claim is based upon a reasonable expectation of a recovery of the jurisdictional amount, or is apparently made in good faith, the Court will not be dictated to by the ad damnum clause of a complaint. Title 28 U.S.C.A. § 1332(a).

Now, if from the face of the pleadings, or if from the evidence, the Court is satisfied to a legal certainty that plaintiff never was entitled to recover the jurisdictional amount, the suit should be dismissed. Fireman's Fund Ins. Co. v. Railway Express Agency, Inc., 253 F.2d 780 (6th Cir., 1958). As the Court so succinctly stated in Yetter Homes, Inc. v. Coastal Cabinet Works, Inc., 234 F.Supp. 568, 571 (E.D.S.C. 1964),

"* * * the determining factor in a jurisdictional question

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