National Upholstery Company v. Corley, Civ. No. 1033-G.

• Decision Date: 29 September 1956
• Docket Number: Civ. No. 1033-G.
• Citation: 144 F. Supp. 658
• Court: U.S. District Court — Middle District of North Carolina
• Parties: NATIONAL UPHOLSTERY COMPANY, Plaintiff, v. Carl V. CORLEY, Defendant.

144 F. Supp. 658

NATIONAL UPHOLSTERY COMPANY, Plaintiff, v. Carl V. CORLEY, Defendant.

Civ. No. 1033-G.

United States District Court Middle District North Carolina, Greensboro Division.

September 29, 1956.

Charles W. McAnally, High Point, N. C., Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., for plaintiff.

Cooke & Cooke, Greensboro, N. C., Ralph R. Sachs, Washington, D. C., for defendant.

HAYES, District Judge.

The plaintiff, a North Carolina corporation with its principal office in High Point, Guilford County, North Carolina, instituted an action in the Superior Court of North Carolina for Guilford County, High Point Division, on July 19, 1956, against the defendant, a citizen of Virginia. Service was obtained upon the nonresident defendant on July 23, 1956, by service upon the Commissioner of Motor Vehicles of the State of North Carolina. The plaintiff seeks the recovery of the sum of $1,408.72, representing damage to and loss of use of its motor vehicle damaged as the result of the alleged negligence of the defendant in a motor vehicular collision which occurred on April 6, 1956, in Rockingham County, North Carolina.

On August 10, 1956, the defendant filed a petition for removal setting forth that no pleadings had been filed in State Court, but that the defendant would assert a counterclaim against the plaintiff in an amount sufficient to confer diversity jurisdiction. Notice and removal bond were filed in this court on the same date, and also on August 10, 1956, the defendant filed in the District Court an answer to plaintiff's complaint, which included a counterclaim on behalf of the defendant against the plaintiff for $78,650 for damages for property damage and personal injury. The plaintiff filed in the District Court a notice to remand to the State Court on August 20, 1956, and the motion to remand is supported by plaintiff's affidavit that the amount contained in the original complaint was the true amount and was set forth therein in good faith.

When the defendant filed his petition for removal he set forth the fact that the plaintiff's cause of action grew out of a collision between the plaintiff's truck and the defendant's car. In the affidavit it is set forth that the amount in controversy at the time of this action and at the present time exceeds the sum of $3,000 exclusive of interest and costs. That while the amount of damages claimed by the plaintiff is $1,408.72 the amount in controversy between the parties hereto actually exceeded $3,000 exclusive of interest and costs because the civil action arises out of a collision between a truck owned by the plaintiff and operated by its agent and an automobile owned by the defendant; that as a result of said collision the defendant sustained serious and permanent personal injuries and damages to his motor vehicle; that the defendant has a counterclaim against the plaintiff based on his allegation that the plaintiff's negligence caused the collision and the resultant injury to the defendant and that the defendant proposes in good faith to assert a counterclaim against the plaintiff in an amount not less than $75,000 and to allege that the collision was not caused by any negligence of the defendant but proximately caused by the sole negligence of the plaintiff's agent. The affidavit further sets forth that the collision occurred in North Carolina and that under the law of North Carolina the defendant is compelled and required to assert his claims for personal injuries by way of counterclaim in the present suit which has been instituted by the plaintiff, or failing to do so to be forever barred from asserting his claim against the plaintiff in any court; that the amount in controversy is not merely the amount claimed by the plaintiff but also the damages suffered by the defendant which the defendant in good faith intends to claim and as he is required to do by law.

There is no dispute between the parties as to the good faith in the amount claimed by the plaintiff nor in the amount of damages asserted by the defendant in his counterclaim.

The plaintiff urges the court to accept the view that in determining the jurisdiction of this court whether in an original action or by removal, that it can consider only the amount in good faith claimed by the plaintiff and that if it is less than $3,000 the court is without jurisdiction and should remand. The defendant, however, contends that the matter in controversy actually involves more than $3,000 and that by the law of the state of North Carolina which compels the defendant in this one case to litigate all of the issues growing out of that collision that the court must take into consideration the amount that is actually in controversy and should consider the entire controversy and not just that portion as asserted by the plaintiff.

This court was confronted with a like situation in the case of McLean Trucking Co. v. Carolina Scenic Stages, D.C., 95 F.Supp. 437, except in that case the cause of action arose in South Carolina but litigation was instituted in North Carolina involving the collision. In the instant case the cause of action arose in North Carolina and the litigation started in the state court. In the McLean case the court held that by virtue of the North Carolina law compelling all of the issues arising out of that one collision be litigated in the first case instituted involving the collision that it was appropriate to consider the amount of damages involved in the controversy whether asserted by the plaintiff or the defendant and refused to remand.

The plaintiff here relies on Trullinger v. Rosenblum, D.C., 129 F.Supp. 12, 15, in which Judge Trimble overruled his previous decision rendered in D.C., 125 F.Supp. 758. In his latest decision he concludes:

"* * * The opinion in the Wheatley case Wheatley v. Martin, D.C., 62 F.Supp. 109 and those that follow it are drastically contrary to the plain provisions of the Removal Statute. The effect of those opinions is to write into the statute a provision that does not appear therein."

In like manner Judge Miller in Ingram v. Starling, D.C., 141 F.Supp. 786, overruled his previous decision in Wheatley v. Martin, D.C., 62 F.Supp. 109. Judge Miller states some very strong reasons in support of his conclusion and cites certain authorities which he considers compelling him to arrive at his conclusion. We have reviewed the cases upon which he relies but do not arrive at his conclusion. The case of Chicago, R. I. & P. R. Co. v. Stude, 346 U.S. 574, 74 S.Ct. 290, 98 L.Ed. 317,...