Strickland Transp. Co. v. American Distributing Co., No. 13898.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 198 F.2d 546
• Parties: STRICKLAND TRANSP. CO., Inc. v. AMERICAN DISTRIBUTING CO.
• Docket Number: No. 13898.
• Decision Date: 04 September 1952

198 F.2d 546 (1952)

STRICKLAND TRANSP. CO., Inc.
v.
AMERICAN DISTRIBUTING CO.

No. 13898.

United States Court of Appeals Fifth Circuit.

July 31, 1952.

Rehearing Denied September 4, 1952.

Ralph W. Currie, Dallas, Tex., for appellant.

William A. McKenzie, Angus G. Wynne, Dallas, Tex., for appellee.

Before HOLMES, BORAH and RIVES, Circuit Judges.

RIVES, Circuit Judge.

Before considering the merits of this appeal, we requested briefs as to the jurisdiction of the District Court in a preliminary per curiam opinion as follows:

"PER CURIAM:

"Jurisdiction of the district court, if such jurisdiction existed, was conferred by the removal of this cause from the Texas state courts. The record in this court does not contain the petition for removal nor does it show the status of the complaint in the state court at the time of the removal. It does disclose that the parties, both plaintiff and defendant, were residents

198 F.2d 547

of Texas. In response to questions from the court upon oral argument counsel stated that the cause was removed on the ground that it arose under the Carmack Amendment, 49 U.S.C.A. § 20(11). 28 U.S.C.A. § 1445(b) provides that `a civil action in any state court against a common carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments, arising under Section 20 of Title 49, may not be removed to any district court of the United States unless the matter in controversy exceeds $3,000.00 exclusive of interest and costs.' See Peyton v. Railway Express Agency, Inc., 316 U.S. 350, 353 62 S.Ct. 1171, 86 L.Ed 1525. The draft to which the bill of lading was attached was in the sum of $3,000.00. The amended complaint, filed after removal, prayed for the recovery of that sum together with $1,000.00 attorneys' fees. The attorneys' fees sought to be recovered were provided, if at all, by Article 2226 of the Revised Civil Statutes of Texas, Vernon's Ann. Civ.St. art. 2226, set out in the margin.<sup>1</sup> The Texas Court of Civil Appeals has properly noted, in connection with this statute, that the Carmack Amendment, 49 U.S.C.A. § 20(11) prescribes the damages as the `full actual loss, damage, or injury to such property, etc.', and that Texas cannot extend the carrier's liability for losses beyond the limit allowed by Congress. Thompson v. H. Rouw Co. Tex.Civ.App., 237 S.W.2d 662, 666. `Claimed attorneys' fees cannot be considered for jurisdictional purposes where there is no legal basis for the recovery of such fees.' Annotation 167 A.L.R. 1249, 1250 and cases cited, including Colorado Life Co. v. Steele 8 Cir., 95 F.2d 535. Upon the face of the amended complaint it is apparent to a legal certainty that the suit cannot involve the amount necessary to confer jurisdiction on the district court. Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 58 S.Ct. 586, 82 L.Ed 845; 45 Amer. Jur.Removal of Causes Sec. 27. Since jurisdiction of the Federal court must affirmatively appear from the record we cannot presume that the complaint at the time the case was removed disclosed that the jurisdictional amount was involved

"Under the provisions of 28 U.S.C.A. § 1445(b) this case should have been remanded to the state court. However, if such an action had been instituted originally in the United States District Court, then under the holding in Peyton v. Rwy. Express Agency, 316 U.S. 350 62 S.Ct. 1171, 86 L.Ed. 1525, irrespective of the amount involved, the court would have had jurisdiction. The question is therefore presented whether the doctrine recognized by this court in Monroe v. United Carbon Co., 5 Cir., 196 F.2d 455, 459 is applicable or whether the improper removal was fatal to the jurisdiction of the District Court.

"Before reaching a decision of that question the court will order the clerk of the district court to transmit to the clerk of this court the original or a certified copy of the petition for removal and of the proceedings in their status as removed, and will further direct the clerk of this court to forward to each of the attorneys of record in this cause a copy of the foregoing views and to request briefs from the attorneys on the jurisdictional questions disclosed. Such briefs may be typewritten and should be filed on or before June 9, 1952."

Now, upon consideration of the briefs filed as requested, it appears to us that the jurisdictional status is the same as in Monroe v. United Carbon Company, supra, wherein we said:

"* * * although this case was

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