Matthiesen v. Northwestern Mutual Insurance Co., 18518.

Decision Date15 February 1961
Docket NumberNo. 18518.,18518.
Citation286 F.2d 775
PartiesAnna H. MATTHIESEN, Appellant, v. NORTHWESTERN MUTUAL INSURANCE COMPANY, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Donald V. Organ, H. Alva Brumfield, Gene S. Palmisano, New Orleans, La., for appellant.

St. Clair Adams, Jr., Adams & Reese, New Orleans, La., for appellee.

Before TUTTLE, Chief Judge, JONES, Circuit Judge, and MIZE, District Judge.

TUTTLE, Chief Judge.

This appeal presents the unusual question whether the trial court erred in dismissing a personal injury damage suit for want of jurisdictional amount to sustain federal jurisdiction.

The plaintiff, a seventy-eight year old woman, while walking on the sidewalk in New Orleans alongside a private school playground, was struck by a football, causing her to lose her balance and fall. As a result of the fall she received a fracture of the upper left humerus. The fracture was treated by physicians at the Ochsner Clinic in New Orleans, by the use of "sling and swath." The arm was immobilized by being bound tightly to the body for a period of eight weeks. It is undisputed that the injury healed normally with no significant impairment. The final medical report, made some eighteen months following the injury, stated that the plaintiff complained of pain at the limits of motion of the arm, but stated that there was no soreness in the member. The plaintiff testified to some pain during the course of the eight weeks' treatment and testified that pain persisted to the date of trial.

After the trial court, sitting without a jury, had heard the evidence offered by the plaintiff as to the extent of the injuries and out-of-pocket expenses, and the case had been concluded except for the proposed deposition of a defendant's witness touching on the question of liability, the trial court announced:

"I am going to study the question as to whether or not there is jurisdictional amount in this case. I don\'t think there is but, in any event, don\'t get the testimony of the Sister at this time, unless you are notified by the Court."

Thereafter, the trial court dismissed the complaint upon the following statement:

"Plaintiff suffered a fractured humerus which healed without incident with no residual disability. Her medical expenses were $50.00, and there was no loss of earnings. Under the circumstances, this is a colorable invocation of federal jurisdiction."

At the outset we stated that this action by the trial court is unusual, as of course it is, since in the normal case upon the assertion of damages in excess of the jurisdictional amount, now $10,000.00, (see 28 U.S.C.A. § 1332(b)), the trial court does not seriously consider an attack on jurisdiction. In point of fact, the appellee in this case made no special effort to cause the trial court to dismiss the case for want of jurisdictional amount. It did deny the paragraph of the complaint asserting the existence of the jurisdictional amount. The suit sought a recovery in the sum of $20,000.00.

The parties are not seriously in conflict as to the ruling principle, since they both cite and quote extensively from the same Supreme Court opinion in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845. Of course, the parties emphasize different parts of the same opinion. It appears to us that the quotation supplied by the appellant adequately supports the action of the trial court. The language of the Court is as follows:

"* * * 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
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  • Davenport v. Mutual Benefit Health & Accident Ass'n
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    ...(1938) 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845; McDonald v. Patton, 4th Cir., 240 F.2d 424, 426; Matthiesen v. Northwestern Mutual Insurance Company, 5 Cir. 1961, 286 F.2d 775. Appellees urge that the claim made by plaintiff for exemplary or punitive damages cannot be made in good fai......
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