Thomas v. Travelers Insurance Company

• Decision Date: 27 September 1966
• Docket Number: Civ. A. No. 3057.
• Citation: 258 F. Supp. 873
• Parties: Mrs. Nan Bernice C. THOMAS, Ellward Thomas, Mrs. Dorothy Murrel L. Johnson, Mrs. Joyce Elizabeth G. McFarland, and (Miss) Gloria Steen Lacey v. The TRAVELERS INSURANCE COMPANY and Ross E. Cox, d/b/a Ross E. Cox, General Contractor.
• Court: U.S. District Court — Eastern District of Louisiana

258 F. Supp. 873

Mrs. Nan Bernice C. THOMAS, Ellward Thomas, Mrs. Dorothy Murrel L. Johnson, Mrs. Joyce Elizabeth G. McFarland, and (Miss) Gloria Steen Lacey v. The TRAVELERS INSURANCE COMPANY and Ross E. Cox, d/b/a Ross E. Cox, General Contractor.

Civ. A. No. 3057.

United States District Court E. D. Louisiana, Baton Rouge Division.

September 27, 1966.

COPYRIGHT MATERIAL OMITTED

Johnnie A. Jones, Baton Rouge, La., for plaintiffs.

David M. Ellison, Jr., Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for defendants.

WEST, District Judge.

This suit involves an automobile accident which occurred on Government Street in Baton Rouge, Louisiana, on the night of September 5, 1963. All five plaintiffs joined in the suit against Ross E. Cox, d/b/a Ross E. Cox, General Contractor, and his insurer, the Travelers Insurance Company, claiming damages for personal injuries allegedly sustained by each of them. The jurisdiction of this Court was based solely upon diversity of citizenship, with the allegation that each of the plaintiffs suffered damages in an amount in excess of $10,000. 28 U.S.C.A. § 1332. Prior to trial, both sides waived their right to jury trial, and defendants moved to dismiss all of the claims for lack of jurisdiction on the ground that none of the various claims, as a matter of law, involved amounts in excess of $10,000. The motions were denied and the evidence was heard. At the close of plaintiffs' case, defendants re-urged their motions to dismiss for lack of jurisdictional amount. Counsel for plaintiffs readily admitted, after the introduction of his evidence, that the claims of Gloria S. Lacey, Joyce E. McFarland, and Ellward Thomas did not involve amounts in excess of $10,000, and thus, the Court being of the same opinion, defendants' motion as to these plaintiffs was granted. But counsel for plaintiff still contended, for the record at least, that the claims of Nan Bernice Thomas and Dorothy Murrel Johnson did involve more than $10,000 each. Out of an abundance of caution the Court, at that stage of the proceedings, denied defendants' motion to dismiss as to these plaintiffs, thus requiring defendants to complete the record by introducing their evidence in defense of these claims. Defendants then proceeded to produce their evidence, and at the conclusion of all of the evidence, defendants once again urged their motion to dismiss for lack of jurisdictional amount. The Court then reserved its ruling on this renewed motion and carried the motion with the case on its merits. It is now the opinion of the Court that defendants' motion as to these two remaining plaintiffs, Nan Bernice Thomas and Dorothy Murrel Johnson, must also be granted. Jurisdiction is not a discretionary matter. If in law and in fact jurisdiction is lacking, the case must be dismissed on that ground rather than to be considered on its merits.

This accident happened when the five plaintiffs were riding together in an automobile on a road under construction. The contractor had raised certain manhole covers to the height of the finished road, but the road itself had not yet been built up to the height of the manhole covers. The car in which plaintiffs were riding made a left turn off of South 13th Street onto Government Street in Baton Rouge, where the manhole was located. The car was only traveling about 15 miles per hour when it struck the raised manhole cover, causing the cover to come off, thus allowing a wheel of the automobile to go into the manhole and causing the automobile to come to an abrupt stop. It was this abrupt stop that allegedly shook up the occupants of the automobile, causing the damages complained of. We are here concerned only with the injuries received by the plaintiffs, Nan Bernice Thomas and Dorothy Murrel Johnson.

At the outset it must be borne in mind that since this is a case based upon a cause of action allegedly arising under Louisiana law, with jurisdiction in this Court being claimed because of diversity of citizenship, this Court is, of course, bound by the State laws applicable to the case. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. But the determination of the value of the matter in controversy for purposes of federal jurisdiction is a federal question to be decided under federal standards. Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961). The federal rule to be used in determining the amount in controversy is stated thusly in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938):

"The rule for governing dismissal for want of jurisdiction in cases brought in the federal courts is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal * * * But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed."

And the rule for testing the "legal certainty" of the contention that plaintiff cannot recover a sum sufficient to meet the jurisdictional requirement of the Court is set forth in Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729, as follows:

"It might happen that the judge, on the trial or hearing of a case, would receive impressions amounting to a moral certainty that it does not really and substantially involve a dispute or controversy within the jurisdiction of the court. But upon such a personal conviction, however strong, he would not be at liberty to act, unless the facts on which the persuasion is based, when made distinctly to appear on the record, create a legal certainty of the conclusion based on them. Nothing less than this is meant by the statute when it provides that the failure of its jurisdiction, on this account, `shall appear to the satisfaction of said circuit court.'"

Of course, the burden of supporting jurisdictional facts by competent and preponderant proofs, when challenged by the defendant, is upon the plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135. Thus, in order to maintain an action based upon diversity jurisdiction in the federal court, the plaintiff has the burden of proving, by a preponderance of the evidence, that, under federal standards, it is not apparent to a legal certainty that he cannot recover an amount in excess of $10,000. Furthermore, it has been held by the United States Fifth Circuit Court of Appeals that where a claim is made for pain and suffering in a personal injury case, the amount claimed by the plaintiff does not have to be accepted by the Court as the amount in controversy when determining whether or not the Court has jurisdiction. Leehans v. American Employers Insurance Co., 273 F.2d 72 (CA 5, 1959).

With these well established principles in mind, we must look specifically at the respective claims of Nan Bernice Thomas and Dorothy Murrel Johnson.

The evidence in this case shows that Dr. Roy Regan saw Nan Bernice Thomas in the emergency room of the Baton Rouge General Hospital at 10:45 on the night of the accident, September 5, 1963. Her only complaint was of a pain in her breast, and his examination revealed only a "small mild bruise on the breastbone." He found no other injuries and the patient had no other complaints. It was the opinion of Dr. Regan that her complaints would last a week or ten days at most. He also testified that if back or neck pains were to develop from this accident, they would have developed within a day or two, but that any such pains developing weeks after the accident could not possibly be attributed to this accident. Mrs. Thomas testified that after having been seen by Dr. Regan on September 5, 1963, she was not seen again by a doctor until September 11, 1963, when she was seen by Dr. Dabney M. Ewin in New Orleans, Louisiana. When she was examined on September 11, 1963, by Dr. Ewin, his findings were similar to those of Dr. Regan, i. e., "localized tenderness over the lower sternum and particularly the xiphoid process (breastbone)." His examination of her back and neck was completely negative, with no muscle spasm being noted. He concluded that she should completely recover within two to four weeks. She was next seen by a doctor on September 24, 1963, when she visited Dr. Van Tassell in Berkeley, California. It was at this time that she first complained of soreness in her neck. And it was not until her next visit to Dr. Van Tassell on October 16, 1963, that she complained for the first time of pain in her lower back. On November 19, 1963, she stated that she had recovered, felt much better, and returned to work. This doctor testified that she was not completely over her complaints until January 28, 1964. She never complained to Dr. Van Tassell of any chest pain or discomfort in that area. There is very grave doubt that Mrs. Thomas suffered any injury other than the slight contusion of her breast as a result of this accident, but even giving her the benefit of every doubt, at the very worst she suffered (1) a contusion of the breastbone which was completely healed by September 24, or within nineteen days after the accident; (2) a bruise of the right thigh which had completely healed by September 24, or within nineteen days after the accident; (3) a neck pain which did not commence until September 24 and was completely gone by November 19 at the latest; and (4) a back ache that did not begin until October 16, and lasted until January 28, 1964. She was never hospitalized, and except for her limited complaint of pain, was never...