Stewart v. Shanahan
| Decision Date | 13 April 1960 |
| Docket Number | No. 16324.,16324. |
| Citation | 277 F.2d 233 |
| Parties | Priscilla STEWART, Appellant, v. M. H. "Mike" SHANAHAN, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
George A. Spencer, Columbia, Mo., for appellant.
R. James Unruh, Tulsa, Okl., for appellee.
Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges.
Appellant as plaintiff below brought this action to recover damages for alleged fraud and deceit and for breach of warranty on behalf of appellee in the sale of a so-called show horse. The transaction was pleaded in two counts. Hereinafter, we shall refer to the parties as plaintiff and defendant, respectively.
In count one of her complaint plaintiff in substance, so far as here pertinent, alleged that plaintiff purchased from defendant a show mare on or about December 5, 1957, represented to be sound and fit to be used by plaintiff as a show mare, for which plaintiff paid $3,750.00; that said mare was never fit for plaintiff to use as a show mare; that the mare suffered from neurectomy (severed nerves) in both front legs, which defendant knew at the time of the sale and which was never disclosed to plaintiff; that said mare was suffering from foundering or laminitis and a condition of chronic arthritis, and that because of said conditions, said mare was unfit for and never able to be used as a show mare — the purpose for which said mare was purchased — and therefore was a total loss to plaintiff, as the mare's value is only nominal; that defendant knew that the nerves in the front legs of said mare were severed, which was not discernible on ordinary inspection, and which the defendant failed to disclose to plaintiff prior to the time of the sale; that plaintiff offered to return the mare and asked for a refund of the money paid, which was refused by the defendant.
Plaintiff's first count of her complaint was based on fraud and misrepresentation and she asked damages of $3,750.00, the amount paid for the mare, $1,963.38 for sums of money expended for board, care, keep, veterinary services, medicine, shoeing and other miscellaneous items of expense, $7,500.00 for inconvenience, humiliation, grievous mental anguish and distress of body and mind, and $10,000.00 punitive damages.
As ground for her right to recover punitive damages she alleged that:
"* * * defendant acted wilfully, wantonly and maliciously and with a reckless disregard to and an entire want of care for the rights of plaintiff, and with a conscious indifference to the consequences to the plaintiff which might and did result from defendant\'s acts and representations, * * *"
and as ground for her right to recover for mental anguish and distress of body and mind:
"* * * that she had taken riding lessons and had shown horses in a few instances and had developed a great desire to own a show mare of her own and had developed an intense desire to own and show this mare and had become attached to her, and that as a direct result and natural consequence of this mare\'s inability to show and perform the service for which she was purchased and the large expenditure of money made and the great inconvenience and the humiliation incurred because of the public knowledge of the large expenditures and not having a show mare, that she suffered grievous mental anguish and great distress of body and mind and was thereby damaged in the sum of Seven Thousand Five Hundred ($7500.00) Dollars."
In the alternative, plaintiff in a second count alleged a breach of warranty of fitness as a show horse and claimed as damages $3,750.00, the purchase price of the mare, $1,963.38 for expenditures made, and $7,500.00 for humiliation, inconvenience, grievous mental anguish and distress of body and mind, on the ground that the said mare was not sound and free from hidden defects which would impair its usefulness as a show horse, for the reason that said mare suffered from neurectomy (severed nerves) in both front legs, which was not discernible on ordinary inspection, and that the mare was also suffering from foundering or laminitis and a condition of chronic arthritis. As basis for her right to recover damages for mental anguish and distress of body and mind she repeated verbatim the allegations alleged in the first count of her complaint as basis for her right to recover such damages.
On motion, the court struck from both counts of the complaint the allegations alleged as the basis for her right to recover damages for mental anguish and distress of body and mind. The court, by the same order, dismissed the second count of the complaint, expressing the view that by striking the allegation of the second count with reference to damages suffered by her by reason of mental anguish and distress of body and mind, the amount in controversy no longer exceeded, exclusive of interest and costs, the sum of $10,000.00. From this order striking from both counts of the complaint the allegations by which she sought to recover damages for mental anguish and distress of body and mind and dismissing the second count, plaintiff prosecutes this appeal.
As has been observed, the court struck from both counts of the complaint the allegations by which plaintiff sought to recover damages for mental anguish and distress of body and mind. Having eliminated this allegation as to damages, the court then dismissed the second count on the ground that it did not involve the amount necessary to confer jurisdiction on the trial court.
There was but one transaction or controversy alleged in the complaint. The plaintiff first alleged this transaction on the theory that it sounded in tort. Then, out of an abundance of precaution, she pleaded in the alternative that her right of recovery was based upon breach of contract. This she had a right to do under rule 18(a), Federal Rules of Civil Procedure, Title 28, U.S.C., which in part provides:
"The plaintiff in his complaint or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party."
If, under the evidence, she should be entitled to recover under the first count of the complaint, she could recover on every element of damage alleged in the second count of the complaint.
A cause of action is generally defined as the fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief. Federal Reserve Bank of Atlanta, for Use of American Surety Co. of New York v. Atlanta Trust Co., 5 Cir., 91 F.2d 283, 117 A.L.R. 1160; Baltimore & O. R. Co. v. Larwill, 83 Ohio St. 108, 93 N.E. 619, 34 L.R.A.N.S. 1195; Emory v. Hazard Powder Co., 22 S.C. 476. Generally, the question of jurisdiction is to be determined by the allegations of the complaint and if the allegations of the complaint are made in good faith and the jurisdictional amount is properly pleaded, then the court's jurisdiction attaches when the complaint is filed and subsequent proceedings ordinarily will not divest the court of jurisdiction once attached. Anderson-Thompson, Inc. v. Logan Grain Co., 10 Cir., 238 F.2d 598; American Fidelity & Casualty Co. v. Owensboro Milling Co., 6 Cir., 222 F.2d 109; T. S. C. Motor Freight Lines v. Leonard Truck Lines, Inc., D.C.La., 4 F.R.D. 366; 36 C.J.S. Federal Courts § 310 d(2), p. 537; Straf v. Colonial Factors Corporation, 8 Cir., 273 F.2d 554; St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845; United Steelworkers of America, C.I.O. v. International Tel. and Tel. Corp., D.C.Minn., 133 F.Supp. 602; Jones v. St. Paul Fire & Marine Ins. Co., 5 Cir., 108 F.2d 123. In Anderson-Thompson, Inc. v. Logan Grain Co., supra 238 F.2d 601, it is said:
"In the absence of bad faith or collusion, not here present, jurisdiction attaches at the moment of the filing of the complaint and the existence of a good defense or a voluntary or involuntary reduction of the amount claimed, or...
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