Morris v. Gimbel Brothers, Inc.

• Decision Date: 07 October 1965
• Docket Number: Civ. A. No. 35575.
• Citation: 246 F. Supp. 984
• Parties: Thomas W. MORRIS and Eleanor R. Morris v. GIMBEL BROTHERS, INC., also doing business as "Gimbel's".
• Court: U.S. District Court — Eastern District of Pennsylvania

246 F. Supp. 984

Thomas W. MORRIS and Eleanor R. Morris v. GIMBEL BROTHERS, INC., also doing business as "Gimbel's".

Civ. A. No. 35575.

United States District Court E. D. Pennsylvania.

October 7, 1965.

Matthew Kramer, Kramer & Harrison, Philadelphia, Pa., for plaintiffs.

Albert C. Gekoski, Philadelphia, Pa., for defendant.

KIRKPATRICK, District Judge.

This is a suit brought by a husband and wife to recover damages for injuries to the wife. The complaint alleges that she was hurt when she tripped and fell over boxes which were lying in the aisle of the defendant's department store where she was a customer. The wife claims $100,000 and the husband $50,000. The defendant has moved to dismiss the action for want of jurisdiction on the ground that the injuries involved do not meet the $10,000 federal jurisdiction requirement.

I have before me only the complaint and answer, the plaintiffs' answers to the defendant's interrogatories, a letter from Mrs. Morris's physician, three letters from a medical consultant, and an official summary of the hospital record of Mrs. Morris's case. It seems unnecessary to go into a detailed discussion of her claim because, after careful consideration, I cannot find that it was made in bad faith for the mere purpose of obtaining federal jurisdiction. I think it very unlikely that she will get a verdict for the jurisdictional amount (or anything very near it), but jurisdiction turns not upon the probability or improbability that she will get a verdict in the jurisdictional amount but upon whether there is a certainty that she could not get such a verdict or that it could not stand if she did.¹

This brings us to the husband's claim. I may say at once that there is not the remotest possibility that a verdict of $10,000 or anything like it in favor of the husband would be rendered or that, if rendered, such a verdict could stand. The only ground for sustaining jurisdiction of the husband's case which need be considered is the principle of pendent jurisdiction stemming from the decision in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148. I believe that the case of Borror v. Sharon Steel Company, 3 Cir., 327 F.2d 165, is controlling and that the husband's claim is pendent to the wife's.

The case of Sobel v. National Fruit Product Co., D.C., 213 F.Supp. 564, was decided prior to the Borror case and held that the husband's claim was independent of that of the wife. In the Borror case, however, the court had before it claims under both the Survivor's Act and the Wrongful Death Act of Pennsylvania and held that the federal court had jurisdiction of either claim as pendent to the other. The court pointed out that in Pennsylvania the two actions would have been consolidated, that they were for the same tort, for the same injuries and that the damages recovered in one suit were complementary to those recoverable in the other. It might be urged that the present case is distinguishable from Borror on the ground that ...