Sparks v. England
| Citation | 113 F.2d 579 |
| Decision Date | 25 July 1940 |
| Docket Number | No. 11648.,11648. |
| Parties | SPARKS v. ENGLAND et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Henry Warten, of Joplin, Mo., for appellant.
R. H. Davis, of Joplin, Mo. for appellees.
Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.
The court below dismissed the complaint of appellant (plaintiff) upon the ground that it failed to disclose that an amount sufficient to confer jurisdiction was in controversy. From the resulting judgment, the plaintiff appeals.
In her complaint, after asserting diversity of citizenship and that the amount in controversy exceeded $3,000, she alleged, in the first count, that she owned a cemetery lot in Jasper County, Missouri, and that in December, 1937, or January, 1938, the defendants (appellees) unlawfully entered upon her lot and dug up and carried away a tombstone worth $50. In this count she prayed for statutory damages of treble the value of the tombstone. In the second count she incorporated the allegations of the first count by reference, and then alleged that the defendants wilfully and unlawfully entered upon her lot and "unlawfully dug up and removed from said burial lot the monument or tombstone from over the grave of plaintiff's deceased mother, and desecrated the graves of plaintiff's deceased kin by trampling, defacing, and digging into the same, to the great damage of the plaintiff in intense bodily suffering and pain and distress of mind, humiliation and suffering from outraged feelings in the sum of Two Thousand ($2,000.00) Dollars." In this second count plaintiff asked for $2,000 compensatory damages and $1,000 exemplary damages. In the third count the plaintiff incorporated by reference the allegations of the first and second counts and alleged that her mother died in 1934 and was buried in plaintiff's lot; that shortly thereafter plaintiff purchased from defendants a tombstone for her mother's grave, and that the defendants made and installed it, and that it remained in place for more than a year; that in December, 1937, or January, 1938, the defendants unlawfully and wilfully entered upon the lot, dug up and carried away the tombstone, and thereafter surreptitiously, without plaintiff's knowledge, wilfully and unlawfully reentered upon the lot and placed over her mother's grave an inferior tombstone which plaintiff had not ordered; that the presence of this inferior tombstone is a constant reminder of the desecration of her mother's grave by the defendants, and plaintiff continues to suffer humiliation, pain and distress of mind because of the presence of this inferior stone. In the third count the plaintiff asks for $2,000 compensatory damages and $1,000 exemplary damages.
It therefore appears that plaintiff seeks $150 damages on account of the removal of the tombstone first mentioned, $2,000 compensatory damages and $1,000 exemplary damages for wilful trespass and desecration of graves committed when this tombstone was taken up and removed, and $2,000 compensatory damages and $1,000 exemplary damages for the wilful trespass committed in connection with the substitution of the inferior tombstone. The total damages demanded are $6,150. That is the amount the plaintiff claims the defendants owe her because of their allegedly wilful and unlawful acts.
The defendants moved to dismiss the plaintiff's complaint upon the ground that the court was without jurisdiction, "the petition not stating facts sufficient to authorize a recovery of a sum of money within the jurisdiction of the court." The court was of the opinion that the plaintiff could not recover for injury to her feelings occasioned by the acts of the defendants, and therefore granted the motion to dismiss.
The plaintiff argues that under the law of Missouri it would be possible for her to recover more than $3,000 damages for the injuries occasioned by the wilful torts which constitute the basis of the claim asserted in her complaint. The defendants argue that under the laws of that State she could not recover any damages for mental suffering, and that therefore it would be impossible for her to recover a judgment for an amount which would give the federal court jurisdiction. The defendants do not contend that there is any statute of Missouri which would preclude the plaintiff from recovering damages for mental suffering proximately caused by such acts as are alleged in her complaint or that the Supreme Court of Missouri has ever ruled upon the question of the right to recover such damages under a state of facts exactly similar to that described in the complaint. The contention of the defendants is that under the law of Missouri such damages cannot be recovered unless the acts of the defendants were accompanied by physical injury or unless they were characterized by malice, insult, wantonness or inhumanity or were done with intent to humiliate or degrade, and that plaintiff has only alleged that the acts of the defendants were wilful and unlawful. We shall not attempt to decide what the rule in Missouri is upon this subject, because we think it is unnecessary to do so in passing upon the question of...
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